Federal Court Enjoins Biden Administration's Transgender Reading of Title IX

 In what is becoming a line of similar district court decisions, federal district court judge in Kansas recently enjoined the Biden Administration's enforcement of its transgender reading of Title IX. 

The opinion by Judge Broomes is a tour de force, addressing a number of issues that have made the news in recent Supreme Court cases, including Bostock v. Clayton County,  (non)deference to agency interpretation of federal statutes (Loper Bright), major question doctrine, the spending power, and freedom speech. Constitutional Law I & II all wrapped up in a single suit.

I was particularly interested in Judge Broomes' analysis of freedom of speech. Plaintiffs had argued that the Department of Education's definition of sexual harassment was unconstitutionally vague and would likely chill the speech of students who otherwise would express their beliefs that sex is immutable and binary and prefer to use pronouns based on biological sex. The judge agreed, citing the Department's failure to define discrimination based on "gender identity," leaving it unclear what speech might possibly trigger a discrimination claim. 

These cases will soon be heard by circuit courts and, ultimately, the Supreme Court. The high court must then decide whether to extend Bostock to Title IX, embrace two conflicting readings of civil rights statutes, or revisit, retool or reverse Bostock.