RALEIGH — Led by Indiana Attorney General Todd Rokita, 22 states have filed suit in federal court in Tennessee over the Biden administration’s interpretation of Title IX “to include discrimination based on sexual orientation and gender identity.”
North Carolina is not among the 22 states that are part of the lawsuit.
The lawsuit seeks to block the U.S. Department of Agriculture’s (USDA) recent May 5 guidance that would withhold student-lunch funds to states failing to adopt Biden administration’s Title IX gender identity policies.
The lawsuit’s main contention is the Biden administration violated the Administrative Procedures Act by failing to go through the appropriate rulemaking procedures. The Biden administration agencies involved have claimed they did not have to follow the procedures because the guidance is nonbinding.
However, the USDA’s statement on the new guidance said that any entity receiving Food Nutrition Service (FNS) funds would “must investigate allegations of discrimination based on gender identity or sexual orientation.”
An estimated 30 million students a day rely on school meals. According to the most recent statistics from the 2019-2020 school year, 57% of North Carolina students were enrolled in the free and reduced lunch program.
Specifically, the lawsuit wants to stop the USDA from holding back school meal funding in states “that continue to separate students by biological sex in appropriate circumstances.” Such circumstances could apply to areas like locker rooms, showers, and restrooms and even to participation on sports teams.
“We all know the Biden administration is dead-set on imposing an extreme left-wing agenda on Americans nationwide,” said Rokita in a press release.
Rokita is joined in filing the lawsuit by Tennessee Attorney General Herbert Slatery.
In June, Rokita and Slatery led 25 other state attorneys general in sending a letter to President Joe Biden on the issue. The letter was supported by Ohio and joined by Alabama, Alaska, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia and Wyoming.
In June 2021, Biden’s Department of Education (DOE) revived the Obama administration’s Title IX sexual and gender identity policies by issuing a Notice of Interpretation declaring their intention to enforce Title IX’s prohibition on sex-based discrimination to include sexual orientation and gender identity.
Both the Biden administration has consistently cited the case of Bostock v. Clayton County in order to justify adding gender identity and sexual orientation to Title IX, including Biden’s related January 2021 Executive Order.
The Bostock citation has become problematic as the U.S. Supreme Court’s ruling in the Bostock case did not apply to Title IX but instead held that gay or transgender employees were protected against discrimination under Title VII of the Civil Rights Act of 1964. Title VII is the federal law prohibiting discrimination based on sex in employment.
Writing for the majority in Bostock, U.S. Supreme Court Justice Neal Gorsuch was specific in the limitations being applied to employment and hiring practices.
“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,” Gorsuch wrote.
Gorsuch continued, “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”
In late July, a judge for the U.S. District Court for the Eastern District of Tennessee temporarily blocked both the DOE and the Equal Employment Opportunity Commission from implementing the gender identity-tied guidance.
U.S. District Judge Charles Atchley, a Trump appointee, ruled in favor of a coalition of 20 Republican state attorney generals led by Tennessee’s Slatery that filed suit in August of 2021.
“As demonstrated above, the harm alleged by Plaintiff states is already occurring — their sovereign power to enforce their own legal code is hampered by the issuance of Defendants’ guidance and they face substantial pressure to change their state laws as a result,” wrote Atchley in his ruling.
Atchley also said that the Biden administration inappropriately invoked the Supreme Court’s 2020 ruling in Bostock v. Clayton County.
The misapplication of Bostock by the Biden administration is also one of the assertions included in the July lawsuit filed by Rokita.
Biden has also faced calls from 15 Republican governors led by South Dakota Republican Gov. Kristi Noem to stop deployment of his reinterpretation of Title IX.
“By expanding Title IX to include gender identity and sexual orientation, your administration puts girls and women of all ages at risk,” the governors wrote in their July 27 letter to Biden. “The DOE rule would force any institution that receives federal financial aid to allow biological males to access women’s and girls’ locker rooms, bathrooms, and dorms, depriving them of privacy and safety at school. The rule ensures that a far-left ideology on gender will be taught in schools nationwide.”