Appellate court agrees to block new Title IX rule protecting LGBTQ+ students

All three members of a federal appellate court panel agreed that the central parts of a new Title IX rule designed to shield students from discrimination on the basis of sexual orientation and gender identity should not be allowed to go into effect.

Originally, the rule was set to be implemented on August 1, but a stay from a federal judge in Kentucky blocked the rule in Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia.

The Department of Education had asked the panel to throw out the stay, or to at least allow parts of the rule to go into effect as planned. The attorneys general primarily argued against three central sections of the new rule, which they called a “gender identity mandate.” It would have, for example, required teachers to use a student’s preferred pronouns.

But the new rule included many other elements, like strengthening protections for pregnant students and requiring schools adopt certain “grievance procedures.”

The panel did not agree to remove any part of the injunction, saying the rest of the rule couldn’t be separated from the new definition of sex discrimination that the department was trying to create.

“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,” wrote Chief Judge Jeffrey Sutton.

The judges also questioned whether schools would have time to really implement the new rules.

“Harder still, we question how the schools could properly train their teachers on compliance in this unusual setting with so little time before the start of the new school year,” Sutton wrote.

The panel granted an expedited hearing for the case in October.

The Department of Education said, when they announced the new rules, that they hoped it would allow more students to access “educational opportunity free from discrimination.” The department said it would build on the intentions of Title IX, the 1972 civil rights law that prohibits sex-based discrimination in schools that receive federal funding.

“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation's schools free from sex discrimination,” U.S. Secretary of Education Miguel Cardona said in a statement announcing the rules. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”

Judge Andre Mathis, the only judge on the panel appointed by President Joe Biden, partially disagreed with the ruling. Mathis argued that the parts of the rule not challenged by the six states should still be allowed to go into effect.

“I am cognizant of Plaintiffs’ argument that the benefits of enacting the Rule's unchallenged provisions are outweighed by the expense or confusion of phased implementation,” Mathis wrote. “But most of the expense is attributable to provisions that Plaintiffs neither directly challenge nor cite as a source of harm.”

A federal judge in Louisiana also blocked the new rule in Idaho, Louisiana, Mississippi and Montana, calling it “an abuse of power.” Twenty-six Republican-led states have filed lawsuits in opposition to the rule, according to Education Week .

In a statement, Kentucky Attorney General Russell Coleman called the new rule a “blatant assault” on protections for women and girls in the classroom.

“This ruling is a victory for common sense itself, and it’s a major relief for Kentucky families. As Attorney General and as a dad, we'll keep up the fight for my girls and for women across Kentucky so they can continue to fulfill their potential for the next 50 years and beyond,” Coleman said.

The new rules also would have rolled back changes put in place by the Trump administration that narrowly defined sexual harassment and allowed people accused of sexual harassment or assault to cross-examine their accusers in live hearings.

State government and politics reporting is supported in part by the Corporation for Public Broadcasting.