Appeals court refuses to lift order blocking rule meant to expand protections for LGBTQ+ students

FRANKFORT, Ky. — A federal appeals court on Wednesday refused to lift a judge's order temporarily blocking the Biden administration’s new Title IX rule meant to expand protections for LGBTQ+ students.

The ruling from the 6th U.S. Circuit Court of Appeals kept in place a preliminary injunction issued last month by a federal district judge in Kentucky. That order blocked the new rule in six states — Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia — though similar legal fights are taking place in Republican-led states across the country.

“As we see it, the district court likely concluded correctly that the Rule's definition of sex discrimination exceeds the (U.S. Education) Department's authority,” a three-judge panel of the 6th Circuit said in its majority ruling.

The Education Department did not immediately respond to an email and phone call seeking comment.

Kentucky Attorney General Russell Coleman hailed the latest ruling as “a victory for common sense.”

“For 50 years, Title IX has created equal opportunities for women and young girls in the classroom and on the field,” said Coleman, a Republican. “Today, the 6th Circuit becomes the first appellate court in the nation to stop President Biden’s blatant assault on these fundamental protections.”

Chris Hartman, executive director of the Fairness Campaign, a Kentucky-based LGBTQ+ advocacy group, warned that the ruling would endanger transgender children.

"We believe Kentucky schools have an obligation to protect all students, including transgender students, and that they should implement the new Title IX Rule regardless of the 6th Circuit’s opinion," Hartman said in a statement Wednesday evening.

The rule is meant to expand Title IX civil rights protections to LGBTQ+ students, expand the definition of sexual harassment at schools and colleges, and add safeguards for victims. The new protections have been praised by civil rights advocates. But they drew backlash from opponents who say they undermine the spirit of Title IX, a 1972 law barring sex discrimination in education.

Most Republican state attorneys general have gone to court to challenge the new rule.

The regulation kicks in on Aug. 1, but judges have temporarily blocked enforcement while the legal cases move ahead in 15 states: Alaska, Indiana, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

The regulation faces legal challenges from 12 other states where enforcement has not been paused: Alabama, Arkansas, Florida, Georgia, Iowa, Missouri, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota and South Carolina.

Republicans argue the policy is a ruse to allow transgender girls to play on girls athletic teams. The Biden administration said the rule does not apply to athletics.

In its ruling Wednesday, the 6th Circuit panel noted that critics of the rule warned that rolling it out just before the start of the new school year would create an “onerous burden” for the states.

The 6th Circuit panel also expedited a full hearing of the case for this fall.

In granting the preliminary injunction last month, U.S. District Judge Danny C. Reeves in Kentucky noted that Title IX was intended to “level the playing field” between men and women in education but said the department was seeking to “derail deeply rooted law” with the new policy.

“At bottom, the department would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity,’ ” he said in his ruling. “But ‘sex’ and ‘gender identity’ do not mean the same thing. The department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute.”

Responding at the time to Reeves' action, the Education Department said: “Title IX guarantees that no person experience sex discrimination in a federally funded educational environment. The department crafted the final Title IX regulations following a rigorous process.”

The appeals court ruling drew a partial dissent from one member of the three-judge panel.

“All three members of the panel, it bears emphasis, agree that these central provisions of the Rule should not be allowed to go into effect on August 1,” the majority ruling said. “Our modest disagreement turns on the question, in this emergency setting, of whether the other parts of the Rule can be separated from these central provisions.”