
On Friday, the Supreme Court ruled that the Biden administration could not implement certain sections of a significant anti-sex discrimination rule in education that is being challenged in court due to its safeguards for transgender kids.
The administration asked the court to allow less controversial portions of the regulation—many of which have nothing to do with gender identity—to take effect in states where it has been challenged while lower courts debate the more divisive transgender problems. The court rejected this request.
“The Government hasn’t given this Court enough justification to overturn the interim rulings of the lower courts that the three sections deemed likely to be unconstitutional are entwined with and impact other sections of the rule,” the Supreme Court’s ruling stated, based on the limited record and its emergency applications.
The court was not requested by Solicitor General Elizabeth Prelogar to overturn decisions made by subordinate courts that blocked the implementation of policies that would have required affected individuals to use a transgender person’s preferred pronoun or permitted transgender students to use restrooms that corresponded with their gender identity. For now, those regulations are suspended in the impacted states.
States that chose not to appeal the regulation are unaffected by the Supreme Court’s decision and will continue to be subject to its provisions.
Conservative Justice Neil Gorsuch dissented from the majority’s decision in part, joining liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
“The lower courts went beyond their power to repair the specific losses asserted here by prohibiting the Government from enforcing hundreds of laws that respondents never challenged and that bear no obvious relevance to respondents’ alleged injuries,” Sotomayor wrote in the dissent. “This Court’s remaining injunctions will burden the Government beyond what is necessary.”
The Education Department completed the relevant regulation in April, and it is applicable to all educational institutions that accept federal funds.
The rule recognizes safeguards for transgender students and incorporates additional features, such as new procedures pertaining to pregnant and postpartum students and personnel, that were not challenged. For instance, the regulation mandates that pregnant students have access to lavatories and lactation areas.
Twenty-two of the 26 states that challenged the regulation won decisions from lower courts, preventing the administration from implementing the rule in its entirety.
The Supreme Court took action in response to challenges in two different instances that had successfully prevented the full set of regulations in their respective states—one from Louisiana and the other from Kentucky.
One case was filed in Kentucky by a group of six states led by Tennessee, along with a few individual plaintiffs. The other complaint was sponsored by Louisiana and involved three other states as well as several local jurisdictions.
The government had to go to the Supreme Court after federal judges in both cases stopped the regulation in its entirety as it pertains to the plaintiffs and appeals courts refused to limit the injunctions’ reach.
Judges of the lower court erred in blocking elements that the challengers had not even focused on, according to Prelogar’s legal filings.
She further contended that the Education Department’s determination that gender identity is protected under Title IX ought to be upheld since it represents a “straightforward application” of the 2020 Supreme Court decision that determined gender identity was protected under the employment discrimination statute with similar phrasing, Title VII.
In response, the challengers argued in court documents that the regulation should be halted in its entirety since, according to Louisiana Attorney General Elizabeth Murrill, “the rule’s redefinition of sex discrimination pervades all 423 pages.”