A panel of federal appellate court judges heard arguments Monday from Louisiana’s top attorney, who doesn’t want to enforce new rules President Joe Biden has proposed to protect transgender students. (Wes Muller/Louisiana Illuminator)
NEW ORLEANS — A panel of federal appellate court judges heard arguments Monday from Louisiana’s top attorney, who doesn’t want to enforce new rules President Joe Biden has proposed to protect transgender students.
The three U.S. 5th Circuit judges are considering a preliminary injunction a federal judge in Louisiana granted in June that temporarily blocked Biden’s new Title IX policy from taking effect. Title IX is a landmark federal civil rights law that prohibits discrimination on the basis of sex. Similar injunctions are in place in nearly half of all states, and at least one is likely to end up before the U.S. Supreme Court. Idaho and Montana have joined Louisiana’s case and are also subject to the present injunction.
Attorneys representing Louisiana argued before the panel of judges: Don Willett, a federal court appointee of former President Donald Trump; Jerry Smith, a Ronald Reagan selection; and Dana Douglas, a Biden, that the injunction should not be narrowed to provisions in the rules meant to limit discrimination against transgender students because the term “gender identity” is used throughout the policy.
Substituting gender identity for biological sex would subvert the purpose of Title IX, Louisiana Attorney General Liz Murrill argued. Gender identity refers to the gender an individual identifies with, which could differ from their sex assigned at birth.
“The government used the new terminology in a way that it’s that interwove it throughout the entirety of the rules, so you just can’t separate the two,” Murrill said in an interview after the hearing. She described the new rules as a “relentless attack on women and girls” from the Biden administration.
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Jack Starcher, an attorney defending the rules for the U.S. Department of Education, argued the scope of Louisiana’s preliminary injunction should be narrowed.
Other parts of the new rules include stronger protections for pregnant students and measures aimed at better supporting those who experience sexual harassment. While the state’s argument centers on K-12 schools, the injunction also blocks enforcement on college and university campuses.
“It is impossible to explain what you’re doing when you discriminate against someone [on the basis of gender identity] without relying on biological sex,” Starcher argued in defense of the gender identity terminology.
Attorneys representing the state disagreed, presenting a scenario in which a nonbinary student, or one whose gender identity falls out of the male-female binary, might be excluded from a student-run religious organization regardless of what their biological sex is.
The conservative judges on the panel seemed to favor the state’s reasoning. Smith was particularly outspoken in his comments about the state’s arguments related to intramural sports.
“Women would be denied the benefit of educational services if she doesn’t want this great big burly guy competing against her,” Smith said in response to Starcher’s arguments.
While the new Biden rules don’t address competitive sports, physical education classes could be required to include transgender students.
Starcher argued that if athletics is what Louisiana is concerned about, it should vacate its injunction and seek one limited to intramural sports.
But Natalie Thompson, an attorney with Alliance Defending Freedom, a Christian legal advocacy group that argued on behalf of the state, said that the point isn’t athletics, it’s the federal government’s “linguistic gymnastics.”
Attorneys also argued over whether the U.S. Supreme Court’s ruling in Bostock v. Clayton County is relevant to the Title IX Rule. Bostock is a landmark civil rights decision in 2020 that held that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin, also protects employees from discrimination on the basis of gender and sexual orientation.
The 5th Circuit panel could ultimately uphold, throw out or narrow the injunction. A ruling could take months to come out, Murrill said.
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