Federal Judge Rules Title IX Does NOT Protect 'Gender Identity'
Judge rejects former Democratic President Joe Biden attempt to broaden Title IX to protect 'gender identity' so that men who "identify" are treated like women under federal law.
Transgender advocates suffered a major blow Wednesday when a federal judge ruled that Title IX protects only biological women from sex discrimination, not men who identify as women.
U.S. District Judge Louis Guirola, Jr. of Mississippi ruled the U.S. Department of Health and Human Services (HHS) exceeded its authority in May 2024 when it implemented regulations “redefining sex discrimination and prohibiting gender identity discrimination.”
Judge Guiroloa’s ruling likely will have profound ramifications in women’s healthcare, sports, and employment.
Opponents of transgender rights say according their rights to biological males effectively deprives women of their rights as a sex class by obliterating the line between male and female. The disputed HHS regulation involved whether transwomen (men) are entitled to protection on the basis of gender identity in healthcare. This goes to the heart of women’s rights to privacy, dignity, and safety in healthcare centers, hospitals and nursing homes. For example, the regulation would make it illegal for a health care provider to refuse to house a biological male in a room or ward occupied by females.
The HHS rule also would have required the federal and state governments to pay for gender transition or other gender-affirming care.
Fifteen states asked the court to invalidate the HHS regulations. However, Judge Guirola ordered universal vacatur, which applies his order to all states.
Reasoning
Judge Guirola said Title IX of the Educational Act Amendments of 1972 was passed to give women an equal playing field by prohibiting discrimination based on sex. He said “sex” referred exclusively to biological sex in 1972. He also notes the HHS itself recognized the distinction between “sex” and “gender identity” when it issued its regulations.
He rejected HHS’s claim that the U.S. Supreme Court’s 2019 ruling in Bostock v. Clayton County should be applied to Title IX. Judge Guirola said Bostock is limited to firing a worker, and involves“but for” intentional discrimination on the basis of gender identity that is not present in the HHS regulations.
Judge Guirola also notes Title IX includes “regulatory carve-outs for differentiating between the sexes” in living and bathroom facilities. “If ‘sex’ referred to ‘gender identity,’ these carve-outs ‘would be rendered meaningless’,” he wrote.
It is not discriminatory, for example, for an educational institution to exclude biological men from separate living facilities. Or for a school to conduct sex-education or physical education classes designated by sex, or to provide separate sports teams for members of each sex. Or to provide toilets, locker rooms and shower facilities on the basis of sex.
He noted Title IX was enacted in response to “evidence of pervasive discrimination against women with respect to educational opportunities… HHS exceeded the scope of its statutory authority when it expanded the Title IX phrase ‘on the basis of sex’ to include ‘discrimination on the basis of gender identity.’”
An appeal is expected but Judge Guirola’s ruling aligns with a broader national trend of narrowing protections for transgender individuals.
Political Context
The HHS regulations were adopted after former Democratic President Joe Biden issued an executive order ordering federal agencies to interpret Title IX of the Education Amendments of 1972 to prohibit discrimination against men who identify as women.
In 2014, former Democratic President Barack Obama became the president first to order transgender individuals to be treated in accordance with their chosen gender identity.
Opposition to males in female sports became a major issue in the 2024 presidential election and is widely considered to be a major reason the Democrats lost the presidency and both chambers of the Congress.
Upon taking office in January, GOP President Donald Trump overruled Biden’s directive with executive orders that affirm the existence of only two sexes, and to stop federal agencies from considering “gender identity” in policy and services.
The lawsuit was filed by a coalition of 15 states that include Mississippi, Tennessee, Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia, and West Virginia.