In at least a temporary victory, a federal judge last week temporarily blocked a Biden administration rule forcing businesses and schools to allow transgender students and employees to use bathrooms and locker rooms and join sports teams based on “gender identity” rather than biological sex.
On July 16, 2022, Federal Judge Charles Atchley Jr. of the Eastern District of Tennessee ruled the administration directives would make it impossible for states to enforce their own laws regarding transgender athletes’ participation in girls’ and women’s sports and access to bathrooms.
Atchley wrote in his order that states “cannot continue regulating pursuant to their state laws while simultaneously complying with Defendants’ guidance.”
Eighteen states filed a lawsuit in June of 2021 to block the rules from going into effect, and Kansas Attorney General Derek Schmidt joined the lawsuit in August of last year.
“The federal court has recognized this illegal overreach by the Biden administration to unilaterally resolve these sensitive questions that are better addressed by elected representatives,” Schmidt said in a release. “It is clear that the administration is determined to make sweeping one-size-fits-all policy changes without public comment or proper notice.”
In total, 20 states sued over the rule.
Schmidt said the guidance from the federal agencies would in effect invalidate state laws across the country and could preclude states from legislating on certain subjects, such as separating sporting competitions by biological sex.
Court says Dept. of Education can’t rely on Bostock
The Department of Education issued the rules on June 16, 2021, based in large part on the 2020 Bostock v. Clayton County, Georgia decision, in which the United States Supreme Court ruled employers could not discriminate against or terminate workers based upon their sexuality or gender identity because of Title VII protections.
However, the justices specifically declined to extend the ruling to bathrooms or locker rooms.
In guidance issued last year, the U.S. Department of Education borrowed language from the Bostock Title VII ruling and tried to apply it to Title IX, which bars sex bias in federally-funded educational programs.
Atchley noted in his ruling that the Supreme Court in Bostock “explicitly refused to decide whether ‘sex-segregated bathrooms, locker rooms, and dress codes’ violate Title VII.'”
The United States Department of Agriculture — which oversees school nutrition programs — also just last month said it would withhold funding for school lunch programs if schools do not follow the Title IX interpretation the court just enjoined.
According to The Center Square, this means that schools around the country will be forced to comply with a range of pro-transgender policies in things like sports, housing, locker rooms, and bathrooms if they want to continue receiving federal funds for lunch and other programs.
It is unclear if Achley’s injunction has any effect on the USDA rules.
Kansas currently has no protections for women’s sports
Earlier this year, the Kansas legislature passed the Fairness in Women’s Sports Act, but it was vetoed by Kansas Governor Laura Kelly. The Kansas House failed to override Kelly’s veto of Senate Bill 160, which would have prevented biologically male athletes from competing in girls’ sports.
The House originally voted 81-41 to pass the bill and came up three votes shy of the 84 needed to override the veto. Three Republicans joined 37 Democrats to sustain Kelly’s veto.
The Senate had already voted 28-10 to override.
In a release, Kelly stated, “Both Republican and Democratic Governors have joined me in vetoing similar divisive bills for the same reasons: it’s harmful to students and their families, and it’s bad for business.” Kelly added that while “we all” want student-athletes to have a “fair and safe place” to compete, this bill “didn’t come from the experts at our schools, our athletes, or the Kansas State High School Activities Association. It came from politicians trying to score political points.”
During the Senate debate, Minority Leader Dinah Sykes (D-Lenexa) stated everyone’s body is “different” and claimed there was no evidence that the average transgender girl is “bigger, stronger, or faster” than a biological woman.
However, in January of last year, NBC News reported on a British study that found that even after a year of hormone replacement — which most transgender minors are not receiving — transgender athletes retain their advantages over biologically female athletes.
Moreover, a comparison between 2016 male finalists for the New Balance Nationals Outdoor Championship — an elite track and field tournament for the best Jr. high and high school competitors in the country — and the 2016 women’s Olympic track and field finalists found that, in many cases, the women’s gold medalists would not have even qualified to enter the boys’ competition.