Texas Gets Biden’s Guidance on Transgender Students Blocked

The Biden Administration can’t enforce in Texas guidance documents it adopted after deciding that Title IX of the Education Amendments protects gay and transgender students, a federal court said.

The documents adopted by the US Department of Education advance “an agenda wholly divorced from the text, structure, and contemporary context of Title IX,” Judge Reed O’Connor said Monday for the US District Court for the Northern District of Texas. O’Connor was nominated to federal bench in 2007 by President George W. Bush and has consistently ruled in favor of conservative arguments.

O’Connor isn’t the first federal judge to address enforcement of the Biden Administration’s policy on gay and transgender students. Other federal district courts and the Fifth and Sixth circuits have also enjoined the new rules.

In Bostock v. Clayton County, the US Supreme Court held that the statutory language in Title VII of the 1964 Civil Rights Act “because of ... sex” prohibits employment discrimination based on sexual orientation and gender identity. Though the Trump Administration took the position that Bostock didn’t apply to Title IX’s prohibition against sex discrimination, the Biden Administration said that it did.

The DOE then promulgated a notice of interpretation, a dear educator letter, and a fact sheet. In them, the department said that the new interpretation of Title IX would guide future investigations, indicated that the department would fully enforce that interpretation, and gave examples of the type of incidents that would be investigated, including refusing to call a transgender student by their chosen name or pronoun.

Texas claimed that the new guidance documents were outside the DOE’s authority to adopt and were legislative rules that required notice-and-comment rulemaking.

The documents flout the text of Title IX, O’Connor said. “By interpreting the term ‘sex’ in Title IX to embrace ‘gender identity’ as distinct from biological sex, the Guidance Documents are contrary to law and exceed the Department’s statutory authority,” he said.

The documents also create “significant new obligations on recipients of federal education funding to refrain from discrimination based on gender identity or sexual orientation,” and they do not leave any discretion regarding the scope of Title IX’s prohibition on discrimination on the basis of sex, O’Connor said. They therefore create a substantive new rules that were required to be subjected to notice-and-comment under the Administrative Procedures Act, he said.

O’Connor declared the guidance documents unlawful and enjoined DOE from “implementing and enforcing of the interpretations of Title IX advanced in the Guidance Documents as it relates to Texas and its schools.” But he made clear that his holding didn’t extend to any cases challenging the administration’s underlying interpretation of Title IX.

The Texas Attorney General’s Office represented the state. The US Department of Justice represented DOE.

The case is Texas v. Cardona, 2024 BL 268932, N.D. Tex., No. 4:23-cv-00604-O, 8/5/24.