On April 23rd, in response to a question from Carleen Johnson, a reporter for The Center Square, about whether our state might lose federal funding due to his failure to comply with Title IX, Chris Reykdal stated: “This will end up in the courts. I think Maine will be the test case… They are threatening that (taking away federal funds) but there are legal processes they have to do and the courts have already said you can’t take money from a program over here because you don’t like a policy over here, there has to be a relationship. There’s no federal money in athletics, so I don’t think that will be material in the end, but the feds will keep threatening it.”
In this article, we will explain why Reykdal is not only wrong, but because Reykdal falsely certified that Washington was “in compliance” with Title IX for the past 8 years, our state could be found liable for 8 years of retroactive fines due to “breach of contract.” Reykdal is playing a dangerous game of “Chicken” which could cost taxpayers billions.
Reykdal fails to understand that Title IX is not just about providing girls with fair athletic programs, but also about providing all students with fair academic programs. Title IX requires not only keeping boys out of girls sports but also keeping boys out of girls bathrooms and girls locker rooms. Title IX also requires signing an annual contract certifying that your state is in compliance with Title IX. For the past 8 years, Reykdal has signed this contract despite knowing our state was not even remotely in compliance with Title IX.
Serious Consequences of Breaching 8 years of of Title VI and Title IX Compliance Contracts
The US Department of Education and the US Department of Justice have both stated that they intend to hold states accountable for past breaches of Title VI and Title IX Certification Contracts. On April 3, 2025, the US Department of Education OCR sent letters to State Commissioners overseeing K-12 State Education Agencies (SEAs) requiring them to certify their compliance with their antidiscrimination obligations in order to continue receiving federal financial assistance. Here is a link to the Press release on this letter: https://www.ed.gov/about/news/press-release/ed-requires-k-12-school-districts-certify-compliance-title-vi-and-students-v-harvard-condition-of-receiving-federal-financial-assistance
Here are quotes from the Certification Letter:
“Each State Education Agency is required to file a single set of assurances with the Secretary as part of its consolidated State plan or application under the Elementary and Secondary Education Act of 1965. These assurances include the SEA’s commitment to comply with all Federal statutes regarding nondiscrimination, including, but not limited to, Title VI of the Civil Rights Act of 1964.” NOTE THAT TITLE IX IS ALSO A FEDERAL NONDISCRIMINATION STATUTE!
‘For entities and institutions that use DEI practices in violation of federal law, those entities may incur substantial liabilities, including the potential initiation of litigation for breach of contract by the Department of Justice in connection with civil rights guarantees contained in federal contracts and grant awards seeking to recover previously received funds paid to them under these contracts and grants.”
Moreover, the submissions of claims for money from the federal government when an entity is not in compliance with Title VI and/or its assurances... subjects the entity to liability under “the False Claims Act (FCA) which imposes liability on anyone who ‘knowingly’ submits a ‘false’ claim to the Government.” United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 742 (2023) (citing 31 U.S.C. § 3729(a)). Under the FCA, violators face penalties including treble damages and civil penalties of thousands of dollars per violation.” In short, if Washington state continues its blatant violations of Title VI and Title IX, Washington state could be fined billions of dollars.
Why Washington State will almost certainly be found out of complaince with Title IX
Enacted by Congress 53 years ago, Title IX is a very clear and very simple federal law requiring states to provide biological girls with fair opportunities to succeed in all academic and sports programs that receive federal funding. To receive federal funding, states must sign contracts certifying that they are in compliance with Title IX.
Failure to comply with Title IX can not only cause states to loss federal funding for future years, but because of these certification contracts, can cause states to retroactively lose funding for past years due to “breach of contract.” Moreover, if the breach of contract is found to be deliberate, a state can be fined “Triple Damages” for willful Breach of Contract.
In the case of Washington state, during the past 8 years, we have received more than $10 billion just in federal education funding. Thus, should our state be found guilty of non-compliance with our Title IX Certification Contracts for the past 8 years, we could lose more than $10 billion dollars. Should Washington state non-compliance be found to be “willful” we could lose more than $30 billion dollars.
This huge financial harm to taxpayers is in addition to the daily and ongoing harm being inflicted on more than one million public school students here Washington state due to Reykdal and Ferguson’s failure to comply with the clear and simple meaning and requirements of Title IX.
Despite the clear. simple and obvious meaning of Title IX, and despite the financial harm to our state of failure to comply, and despite the harm being inflicted on more than one million students due to failure to comply with Title IX, Washington state leaders like Chris Reykdal and Bob Ferguson are playing a dangerous game of “Chicken” by falsely claiming that Title IX is not about protecting the rights of biological girls – but about protecting the rights of biological males pretending to be girls.
Given the importance of Title IX to our financial future and to our states one million school children, it is important to understand how federal courts have ruled in Title IX “Gender Identity” cases during the past 8 years as well as how they are almost certain to rule in the next 8 years as this issue has already been litigated and resolved by the US Supreme Court. Therefore, in this article, we will present a summary of these cases.
Our conclusion is that Washington state leaders have no chance of winning this legal battle. The US Supreme Court has already ruled against their crazy claim that Title IX is about gender identity rights rather than biological girls rights. It is imperative that Washington state leaders end their war against Title IX and stop fighting with the federal government.
If Reykdal and Ferguson continue their battle with the federal government, it will almost certainly cost Washington taxpayers billions of dollars in back dated breach of contract fines – and in the end, Washington will be forced to comply with Title IX or lose billions more dollars in future federal education funds. If you do not have time to read the whole article, all you really need to know is that in the latest and most important case, called Tennessee v Cardona, on January 9, 2025, the federal court ruled that:
“When Title IX is viewed in its entirety, it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female… As this Court and others have explained, expanding the meaning of “on the basis of sex” to include “gender identity” turns Title IX on its head... the entire point of Title IX is to prevent discrimination based on sex—throwing gender identity into the mix eviscerates the statute and renders it largely meaningless.”
Here is a link to the 2025 January 9 Tennessee v Cardona order: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2025/2025-1-title-ix.pdf
This Tennessee court vacated the Biden interpretation of Title IX and ordered all 50 states to comply with the original meaning and intent of Title IX which is to protect the rights of biological girls to fair opportunities in all academic and athletic programs that receive federal funds.
The 2025 Tennessee ruling in turn was based on a unanimous 9 to 0 US Supreme Court ruling on August 16, 2024 in a Biden appeal in this same case. Here is a link to this US Supreme Court ruling and order: https://www.supremecourt.gov/opinions/23pdf/24a78_f2ah.pdf
In their August 16, 2024 ruling, the US Supreme Court clearly stated:
“All Members of the Court accept that the plaintiffs (Tennessee and Louisiana) were entitled to preliminary injunctive relief as to three provisions of the (Biden Interpretation of the Title IX) rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity… respondents are entitled to interim relief as to three provisions of that Rule: (1) (redefining sex discrimination) (2) (prohibiting schools from preventing individuals from accessing certain sex-separated spaces consistent with their gender identity), and (3) §106.2’s definition of hostile environment harassment (to include gender identity). “
Common Sense versus a Crazy Cult Interpretation of Title IX
The Title IX battle is not actually a legal battle. It is more like a Crazy Cult using a series of blatant lies to wage a war against a clear and simple law. There is not now and there never has been any rational way to interpret Title IX as meaning anything other than protecting the rights of biological girls to fair opportunities in academic and athletic programs.
As you will see in our review of Title IX cases, the few Crazy Cult federal judges who have ruled in favor of gutting Title IX have not merely been grasping at magical and made up straws, they have been grasping at thin air. Even worse, they have been ignoring the clear will of Congress in order to advance an insane political agenda seeking to normalize addicting children to Toxic Trans Drugs in order to make billions of dollars for greedy and powerful drug corporations that control the media and sadly also control the Democratic Party.
What we are really witnessing is that this same Crazy Cult has also rendered judges appointed by Democratic Party leaders to be merely rubber stampers for insane claims in what can only be called the “Weaponization” and “Polarization” of our federal courts.
Three False Claims for allowing boys to participate in girls sports
The three most common and utterly false claims used by Crazy Cult federal judges to misinterpret Title IX and justify allowing boys in girls sports are:
#1 That there is no difference in physical ability between boys and girls.
#2 The word “sex” in Title IX includes “gender identity” – even though the concept of gender identity did not exist when Title IX was passed in 1972 – and there is a mountain of evidence that the word “sex” means “biological sex” and that Title IX was enacted to eliminate discrimination against biological girls.
#3 The 2020 Bostock v Clayton County Supreme Court ruling applies to Title IX Education Law (even though the Supreme Court specifically warned that the Bostock ruling only applies to Title VII Employment law).
Title VI and Title IX are fundamentally different. Title VII of the Civil Rights Act of 1964 requires sex-blind treatment in employment decisions. By contrast, Title IX of the Educational Amendments of 1972 requires sex-aware treatment. Title IX explicitly recognizes a person’s sex as relevant to participation in certain activities and access to certain physical spaces—such as with separate sports teams and locker rooms for boys and girls.
Common Sense versus a Crazy Cult Interpretation of Title VI
The Title VI battle is not actually a legal battle either. Just like the Title IX battle, it is the Crazy Cult using a series of blatant lies to wage a war against the plain meaning of a clear and simple law. According to the 2023 US Supreme Court Students v Harvard decision, Title VI prohibits any and all discrimination based on skin color – including prohibiting DEI programs and other racial justice programs that give “preferences” based on skin color.
What about recent federal court rulings blocking Trump’s Executive Order removing federal funds from DEI Racial based programs?
On April 24, 2025, the extremely biased legacy media reported that three federal courts placed injunctions againsnt Trump’s Executive Order removing federal funds from DEI Racial based programs. What the articles failed to point out was that there are at least 13 cases currently being litigated. In the first case, Nat Ass Diversity Officers v Trump, the district court placed an Injunction against the Department of Education – only to have the injunction overturned a few days later by the 4th Circuit Cour of Appeals. In the second case, Doe 1 v Office of Director of National Intelligence, the judge issued an injunction against Trump only to left the injunction a few days later. In the third case, Doe v Collins, filed on March 14, 2025, the case is still pending. In the third case, National Urban League v Trump, the case is still pending. In the fourth case, SF AIDS Foundation v Trump, the case is still pending.
In the fifth case, Chicago Women in Trades v Trump, on Mar. 26, Judge Matthew Kennelly, nominated by Clinton granted a Temporary Restraining Order. It has not yet been appealed.
In the sixth case, American Ass of Colleges for Teacher Ed v Carter, on March 17, 2024, the federal judge issued an injunction. The Trump administration appealed. On Apr. 10, the Fourth Circuit granted the government’s motion to stay the preliminary injunction upon consideration of the parties’ submissions and the Supreme Court's recent order granting a stay pending appeal in Department of Education, et al. v. California.
In the seventh case, Department of Education, et al. v. California, on April 4, 2025, the US Supreme Court overturned a lower court ruling and thereby allowed the Department of Education to continue cancelling DEI grants that violated Students v Harvard.
In the eighth case, Rhode Island Latino Arts v National Endowment for Arts, on April 3, the court denied Plaintiffs’ motions for a preliminary injunction. The Court noted that Plaintiffs’ claims, for now, are moot because NEA rescinded its implementation of the EO pending further administrative review.
In the ninth case, Erie County New York v Corp for National and Community Service, the case is still pending.
In the tenth case, E. K. v Department of Defense, the case is still pending.
In the eleventh case, National Education Association v US Department of Education, the New Hampshire judge McCafferty, made several really absurd arguments. First, she misinterpreted Students v Harvard and advocated for the Biden position that was rejected by the US Supreme Court in their 2023 opinion. She then claimed the Trump order was vague even though it specifically referred to the 2023 Students v Hardvard decision which basically says there is to be no more descrimination based on skin color. She then said it violated the First Amendment – even though the First Amendment right to free speech does not include the right to discriminate against someone based on skin color. Finally, she said that it violated the rule that states are allowed to control curriculum – even though that right does not include the right to discriminate against students based on their skin color. I predict this ruling will eventually be overturned by the US Supreme Court. Here is a link to her 82 page ruling:
https://storage.courtlistener.com/recap/gov.uscourts.nhd.65138/gov.uscourts.nhd.65138.74.0_1.pdf
In the twelfth case, American Federation of Teachers v US Department of Education, the Maryland Judge Gallagher, who was nominated by Trump at least made some reasonable arguments. She did not rule on the policy. She merely ruled that the Trump administration had not followed all of the required administrative steps. What she failed to realize is that because the Trump administration is simply enforcing an existing law in keeping with the 2023 US Supreme Court ruling, there is no need for them to take any administrative steps. I could be wrong, but I think the US Supreme Court will evntually overturn this ruling. Here is a link to the Maryland 48 page ruling: https://storage.courtlistener.com/recap/gov.uscourts.mdd.577437/gov.uscourts.mdd.577437.60.0.pdf
In the thirteenth case, NAACP v US Department of Education, the DC Judge Friedrich, who also appointed by Trump, agreed that the First Amendment was not violated. The judge also concluded that the Trump order did not violate the Administative Procedures Act steps. However, he did agree that the order violated the Fifth Amendment Due Process rights of the NAACP. I do not see how merely enforcing the plain meaning of Title VI of the 1964 Civil Rights Act can violate anyone’s Due Process rights. But this is an important question and it will likely be up to the US Supreme Court to clarify this question. Here are links to DC Court order and ruling:
https://www.naacpldf.org/wp-content/uploads/ORDER-granting-in-part-and-denying-in-part-the-plaintiffs-13-Motion-for-a-Preliminary.pdf
https://www.naacpldf.org/wp-content/uploads/ORAL-RULING-on-the-plaintiffs-13-Motion-for-a-Preliminary-Injunction.-See-text-for-details.pdf
The bottom line is that, apart from the NAACP complaint, none of the court rulings have raised very strong arguments and all of them will likely eventually be overturned by the US Supreme Court.
How can federal court judges make such crazy decisions?
For any federal judge to accept any one of these three ridiculous claims would be troubling. But accepting ALL THREE FALSE CLAIMS means that there is something else going on here that has nothing to do with Title IX but instead has to do with the polarization, weaponization and alarming corruption of our federal courts.
There are three major problems with federal judges. First, because they are appointed for life, some federal judges seem to do almost no research on the issues on which they make rulings. Instead, they appear to believe whatever they want to hear and make rulings based more on their extreme political agendas rather than on either the law or the facts.
Second, because they are appointed for life, federal judges can make completely crazy rulings with no consequences for their crazy rulings other than occasionally being over-ruled by the US Supreme Court.
Third, some federal courts have become extremely polarized during the past 20 years due to the corruption of the federal judge appointment process in which Democratic Party leaders have carefully picked judges willing to ignore and even break important federal laws. Judges appointed by Democrats appear to be completely willing to ignore the facts and the law and make rules based purely on the positions of the Democrats who appointed them.
To see the extent of the corruption of our federal courts, let’s take a closer look at how the federal court system is supposed to work. The federal courts are divided into 11 circuits. Ideally, all of these judges would be neutral, independent, impartial and faithful uphold the intent and meaning of federal laws.
However, this is clearly not the case. Judges in these eleven circuits are not divided equally between Republicans and Democrats or Conservatives versus Liberals. As of January 2, 2025, of the 179 Courts of Appeals judges, 88 were appointed by Republican presidents, and 88 by Democratic presidents with 3 vacant seats. But this does not mean that each Circuit is evenly divided. Instead, as the following table shows, out of the 11 federal appeals courts, Democratic appointees have a majority on 5 circuit courts and Republican appointees have a majority on 5 circuit courts. Only one circuit court (the Third Circuit) is evenly divided.
Most to Least Activist Federal Courts as of January 2025
https://en.wikipedia.org/wiki/Judicial_appointment_history_for_United_States_federal_courts
https://www.ca4.uscourts.gov/judges/judges-of-the-court
Here is a map of these polarized federal courts
Even worse, within these 11 Circuits, judges rulings on cases often have nothing to do with the merits of the case, but instead can be predicted based on the Political Party that nominated them. For example, in this report, we summarize 18 recent Title IX cases wherein 46 federal judges voted. Of the 27 judges nominated by Republicans, 25 (or 96%) voted for the plain meaning of Title IX which is that the word sex means biological sex and not gender identity. By contrast, of the 19 judges nominated by Democrats, only 3 (or 16%) voted for the plain meaning of Title IX. What is disturbing about this is that judges are supposed to vote for the plain meaning of laws 100% of the time!
Here is a table of Judges who supported the plain meaning of Title IX
R judges in favor of Title IX: 25
D judges in favor of Title IX: 3
Total judges in favor of Title IX: 28
Here is a Table of Judges who opposed the plain meaning of Title IX
R judges opposed to Title IX: 2
D judges opposed to Title IX: 16
Total judges opposed to Title IX: 18
Sadly, the best way to understand any given ruling is to look at which Circuit made the ruling and which political party appointed the judges in that circuit who wrote the opinion.
Another problem is that federal circuit court judges know that it is highly unlikely that the US Supreme Court will overrule their decisions. Only a tiny fraction of losers in the Lower Courts have the money to pay for lawyers to even ask the US Supreme to review their case. Even worse, of those who ask the Supreme Court to review their case, less than 1% get the four votes needed on the Supreme Court to make it on the Supreme Court Docket for any given year.
The Supreme Court receives over 7,000 petitions for review each year but only agrees to hear about 70 cases per year. This is only one or two cases per state per year. Unless the Supreme Court agrees to review – and then overturn the case, the opinion of the lower court stands regardless of how biased and even blatantly wrong the Circuit Court ruling is – often affecting everyone in the entire US. Of the 70 or so cases the Supreme Court agrees to hear each years, about half the time the Supreme Court reverses the case and half the time the Supreme Court agrees with the lower court.
But some circuit court rulings are much more likely to be overturned that other circuit courts. For example, the Ninth Circuit has been reversed 192 times in the past 18 years – about 11 times a year! This is 3 to 4 times more often than any other Circuit Court in the US.
Here are the number of cases reversed by US Supreme Court in each circuit court:
Maine Commits Education Funding Suicide
Now that we understand the growing weaponization and corruption of federal courts, let’s take a look at how this has lead to some extremely crazy federal court Title IX rulings. On April 11, 2025, the Maine Attorney General’s Office sent a one page letter to the U.S. Education Department’s Office for Civil Rights saying it would not comply with the department’s proposed Title IX resolution agreement. In the letter, Assistant Attorney General Sarah Forster stated: “Nothing in Title IX or its implementing regulations prohibits schools from allowing transgender girls and women to participate on girls’ and women’s sports teams. Your letters to date do not cite a single case that so holds.”
Sarah then cited four federal court rulings that “required schools to allow trans athletes to participate on teams aligning with their gender identity.” https://mainemorningstar.com/wp-content/uploads/2025/04/Impasse-Response-4.11.25.pdf
Here are the four federal court cases cited by Maine:
B.P.J. v. West Va. State Bd. Of Ed., 98 F.4th 542 (4th Cir. 2024), cert. denied, 145 S. Ct. 568 (2024);
Doe v. Horne, 115 F.4th 1083 (9th Cir. 2024);
Tirrell v. Edelblut, 748 F. Supp. 3D 19 (D.N.H. 2024);
Doe v. Hanover Cnty. Sch. Bd., No. 3:24CV493, 2024 WL 3850810 (E.D. Va. Aug. 16, 2024).
We will review each of these four cases and explain why these cases do not comply with the plain meaning of Title IX as clarified by the US Supreme Court on August 16, 2024 and as further clarified on January 9, 2025 in the case of Tennessee v Cardona. We will then provide a series of cases that ruled in favor of protecting the rights of biological girls to fair sports competition. While this issue is likely headed back to the US Supreme Court, as we have previously noted, in August 2024, the Supreme Court has already ruled that Title IX protects biological girls and not biological males who want to pretend to be girls.
We will begin with the two 2020 cases that B. P. J. was based on. These are the 2020 US Supreme Court ruling in Bostock v. Clayton County and the subsequent mis-reading of Bostock in the Fourth Circuit ruling in Grimm v. Gloucester County School Board.
Bostock v. Clayton County, US Supreme Court
Proponents of the crazy claim that “sex discrimination under Title IX applies to gender identity,” are quick to cite the Supreme Court Ruling ruling in Bostock v. Clayton County, 590 U.S. 644 (decided June 15 2020). Here is a link to this 172 page Supreme Court decision: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Bostock was a Title VII case which covered gender identity discrimination in employment. The decision was 6 to 3 with Alito, Thomas and Kavanaugh dissenting. Justice Alito’s dissent begins on Page 38. Here are quotes:
“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, and national origin.” Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.”
“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity… If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.”
“If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender… if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label.”
“In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and well- understood concept, and what it meant was equal treatment for men and women.”
(Prior to 2017, ten ) “Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision (unanimously) understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. “
“I will briefly note some of the potential consequences of the Court’s decision… Bathrooms, locker rooms… The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
“Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex. This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. “
“The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
On page 165, Justice Kavanaugh added:
“Until the last few years, every U. S. Court of Appeals to address this question concluded that Title VII does not prohibit discrimination because of sexual orientation. As noted above, in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination. 30 out of 30 judges…
So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII.
The law has not changed. Rather, the judges’ decisions have evolved…The Court’s ruling comes at a great cost to representative self-government. And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.”
The Dissent opinions above make it clear that the 2020 Bostock decision reversed 50 years of prior court decisions in what amounted to rewriting Title VII. But regardless of the wisdom of the Bostock ruling, the crazy “Bostock applies to Title IX” claim ignores several additional facts:
First, the Supreme Court specifically did not determine whether Bostock applied to other federal laws. The Supreme Court stated, “The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination…. 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… “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
The above comment by the Supreme Court was likely made in an attempt to reassure several Womens Rights groups who had filed Amicus Briefs expressing a fear that a Bostock ruling would take away their right to have private bathrooms and locker rooms as is required by Title IX.
Second, the field of educational and athletic programs is completely different from the field of employment. Males do not have an inherent physical advantage over females on a job application. But they certainly do on an athletic field.
Third, the language in Title IX is different from the language in Title VII. For example, there are “exceptions” listed in Title IX that are not present in Title VII. These include the exception that allows for separate boys and girls bathrooms, locker rooms and living spaced.
Fourth, changing the word sex to the concept of gender identity undermines the entire purpose of Title IX which was to prevent discrimination of biological women. Including gender identity in the meaning of Title VII does not undermine the intent of Title VII.
How the Grimm v Gloucester Cty School Board Court misinterpreted the 2020 Bostock Supreme Court Ruling (4th Circuit 2020)
On August 28, 2020, just two months after Bostock was published, a split federal court used Bostock to decide a Title IX “gender identity” case called Grimm v Gloucester County School Board. The two to one majority decided that Title IX required that transgender boys be allowed to use the girls bathrooms and vice versa. Here is a link to this opinion. https://www.ca4.uscourts.gov/opinions/191952.P.pdf
Here are the three judges in this Fourth Circuit decision:
Henry FLOYD served in the South Carolina legislature as a Democrat and was nominated to the Court of Appeals by Obama.
James WYNN was nominated to the federal court by Bill Clinton.
Paul NIEMEYER, Dissenting strongly, was nominated to the federal court by Bush I. See:
https://www.ca4.uscourts.gov/judges/judges-of-the-court
On page 52, the Grimm majority states: “After the Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him “on the basis of sex…
In Bostock, the Supreme Court held that discrimination against a person for being transgender is discrimination “on the basis of sex.”
In short, the majority in Grimm ignored the Bostock warning that they were not deciding “bathroom” issues – merely employment hiring issues. Also there was no discussion by the majority about why Title IX had sections on separating the girls and boys bathrooms while Title VII does not even mention bathrooms. However, the Dissenting Judge was aware of this provision in Title IX. He wrote: “Title IX and its regulations explicitly authorize the policy followed by the High School. While the law prohibits discrimination on the basis of sex in the provision of educational benefits, it allows schools to provide “separate living facilities for the different sexes,” 20 U.S.C. § 1686, including “toilet, locker room, and shower facilities.”
In addition, on page 23, the majority gave deference to a 2016 Obama Guidance document which stated that Gender Identity was protected by Title IX. However, the 2016 Obama Guidance document was based on a misreading of the 2001 Guidance document. In addition, the 2017 Trump administration had rescinded the 2016 Obama Guidance document.
Put in plain English, the entire “gender identity is covered by Title IX” House of Cards is based on a series of rescinded Obama Guidance documents which were then given deference by the 2020 Grimms Court. The school board appealed the 2020 Grimm Fourth Circuit to the US Supreme Court. But on June 28, 2021, their Petition was denied. Justices Clarence Thomas and Samuel Alito said that they would have granted the petition. The Grimm Fourth Circuit misreading of Bostock led to the B. P. J. Fourth Circuit misreading of Bostock which is the case we describe next.
B.P.J. v. W Virginia State Bd. Of Ed (4th Circuit 2024)
B.P.J. is a biological male who wanted to participate in Girls Sports. He sued West Virginia after they passed a law prohibiting biological males from participating in girls sports. The District court ruled in favor of West Virginia. On appeal, on April 16, 2024, the Fourth Circuit issued a 68 page opinion reversing the District Court and ruling that biological males could compete in girls sports. Here are the three judges who made this crazy ruling (Heytens wrote the opinion): Toby HEYTENS, Biden appointed. Pamela HARRIS Obama appointed. Steven AGEE, Bush appointed judge who dissented from the Heytens opinion.
Here is a link to this ruling: https://storage.courtlistener.com/recap/gov.uscourts.wvsd.231947/gov.uscourts.wvsd.231947.537.0.pdf
B.P.J. falsely ruled that there are there no differences between the athletic abilities of pre-puberty boys and girls
Here is a quote from the BPJ ruling Page 26 and 28: “P.J. presented evidence that transgender girls with her background possess no inherent, biologically-based competitive advantages over cisgender girls when participating in sports… Before puberty, testosterone levels do not vary significantly depending on whether a person has two X chromosomes, one X and one Y chromosome, or some other genetic makeup. Once puberty begins, however, sex-based differences begin to emerge. “
In fact, there are numerous scientific studies showing that pre-puberty biological males have athletic advantages over biological females. Here are the current US Records for Boys versus Girls for Ages 8, 10 and 12:
In all three events and all three age groups, beginning at age 8 (and even younger) pre-puberty boys records were significantly faster than the same age girls records. Thus, the claim that there are no athletic advantages of pre-puberty boys over girls is absurd.
B. P. J. falsely claims that the word “sex” in Title IX includes “gender identity”
The judge also concluded that the word “sex” in Title IX includes “gender identity.” Here is a quote from page 33: “This Court has already held that discrimination based on gender identity is discrimination “on the basis of sex” under Title IX, see Grimm.” (Grimm reached this false conclusion based on their misreading of Bostock as applying to Title IX.)
In fact, at least 11 federal courts have ruled that the word “sex” in Title IX means biological sex and does not include gender identity. We will review some of these cases later.
Here is a table of 11 recent federal court PRO- Title IX rulings:
In addition, in August 2024, the US Supreme Court issued a 9-0 ruling
Here is a table of 7 recent federal court rulings Against Title IX. Note that 3 of the 7 are in the 4th Circuit:
6 Circuit Courts have ruled in favor of the plain meaning of Title IX and 4 Circuits have ruled against the plain meaning of Title IX
B. P. J. also falsely claimed that the Bostock Supreme Court Title VII Employment Law ruling applies to Title IX Education Law
Third, by relying on Grimm (another extremely bad Fourth Circuit ruling that mis-interpreted Bostock) the B.P.J. ruling also mis-interpreted Bostock. Here is a quote: “Under Title IX, discrimination means treating an individual worse than others who are similarly situated.’ ” Grimm, 927 F.3d at 618 (quoting Bostock v. Clayton Cnty).”
The B.P.J. ruling quoted the deeply flawed 2020 Grimm ruling more than 20 times. It is significant to note that the only judge willing to honor the plain meaning of Title IX was Steven AGEE, a Bush appointed judge, whose 30 page dissent from the Heytens opinion began on Page 39.
The Bush appointed judge was also the only judge to correctly note that B. P. J. did have athletic advantages over biological girls. Here are quotes from this dissent: “B. P. J. dominated (girls) track meets… In so doing, over one hundred biological girls participating in these events were displaced by and denied athletic opportunities because of B.P.J. Additionally, B.P.J. earned a spot at the conference championship in both shot put and discus… two biological girls were denied participation in the conference championships because of B.P.J.”
The Bush appointed judge was also the only judge to correctly interpret the intent and meaning of Title IX. Here is a quote from page 52:
“Allowing transgender girls—regardless of any advantage—as participants in biological girls’ sports turns Title IX on its head and reverses the monumental work Title IX has done to promote girls’ sports from its inception… It is no understatement to say that the inclusion of transgender girls on girls’ teams will drive many biological girls out of sports and eviscerate the very purpose of Title IX.”
The Bush appointed judge was also the only judge to correctly interpret the Bostock decision. Here is a quote from Page 41: “In Bostock v. Clayton Cnty., the Supreme Court considered whether an employer’s termination of employees on the basis of their transgender or homosexual status violated Title VII… In determining that it did, the Court explicitly limited its decision to Title VII and the employment context. (“[W]e do not purport to address bathrooms, locker rooms, or anything else of the kind.”).
The Bush appointed judge was also the only judge to correctly interpret the Spending Clause of the US Constitution (Article 8, Section 8, Clause 1). Here is a quote from page 54:
“When Congress enacts legislation under the Spending Clause—like it did for Title IX—Congress “generates legislation ‘in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. As a result, Congress is required to provide the States “with unambiguous notice of the conditions they are assuming when they accept” funding… Given that West Virginia was expressly allowed to create sex-separated competitive sports teams, the question becomes, does “sex” unambiguously mean gender identity? The answer to that question is undeniably no… If anything, “sex” unambiguously means biological sex.”
The Bush appointed judge was also the only judge to correctly recognize that the 2020 Grimm decision was wrongly decided. Here is a quote from Page 57:
“Because B.P.J. heavily relies on Grimm, I also take this opportunity to emphasize that Grimm was wrongly decided and should be recognized as such… the Grimm majority… incorrectly concluded that Grimm was similarly situated to biological boys. “
In fact, Grimm was not similar to biological boys because she was a biological girl. The Grimm court also erroneously concluded that “sex” actually means “gender identity.”
Here is a quote from Page 65:
“The Grimm majority also incorrectly concluded that the restroom policy violated Title IX… it construed Title IX to require “sex” to be defined as “gender identity” and, therefore, to comport with Title IX restrooms can only be separated on the basis of gender identity. Wrong again… When Congress prohibited discrimination on the basis of ‘sex’ in education, it meant biological sex, i.e., discrimination between males and females… it defies logic to conclude that Congress meant to allow biological boys who identify as girls to shower with biological girls… One can only hope that the Supreme Court will take the opportunity with all deliberate speed to resolve these questions of national importance.”
On July 11, 2024, West Virginia v BPJ 53 page petitioned the US Supreme Court to overturn the lower court ruling.
https://ago.wv.gov/Documents/7.11%20BPJ%20Petition%20final.pdf
On August 12, 2024, a group of 35 Athletic Officials and coaches filed an Amicus brief in favor of the BPJ petition
https://hlli.org/wp-content/uploads/2023/05/Hecox-BPJ-amicus-final.pdf
On November 20, 2024, the US Supreme Court denied the BPJ appeal.
See West Virginia v. B.P.J., 143 S. Ct. 889, 889 (2023) (mem.) Alito, J., dissenting from denial of application to vacate injunction observing that the Court declined to decide “whether either Title IX . . . or the Fourteenth Amendment’s Equal Protection Clause prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.” Here is a link to Alito’s dissent: https://www.supremecourt.gov/opinions/22pdf/22a800_e1p3.pdf
Adams v. Sch. Bd. of St. Johns Cnty (11th Cir. 2022)
Now that we have the Grimm/B.P.J. Fourth Circuit craziness behind us, we will look at some Title IX cases that actually complied with the plain meaning of Title IX. The first of these is a 2022 Eleventh Circuit case called Adams v Schoool Board of St. Johns County.
Here is a link to this 150 page ruling: https://media.ca11.uscourts.gov/opinions/pub/files/201813592.2.pdf
In Adams, the Eleventh Circuit issued a 7-4 en banc (full court) decision affirming that public schools have the right to segregate bathrooms and locker rooms by biological sex. Recall that the Eleven Circuit includes Alabama, Florida and Georgia. Here are the 7 judges who ruled in favor of Title IX: Barbara LAGOA, Circuit Judge, nominated by Trump, wrote the opinion. WILLIAM PRYOR, Chief Judge, nominated by Bush II. Kevin NEWSOM nominated by Trump, Elizabeth BRANCH nominated by Trump, Britt GRANT nominated by Trump, Robert LUCK nominated by Trump, Andrew BRASHER nominated by Trump,
Here are 4 judges who ruled against the plain meaning of Title IX: Alberto JORDAN nominated by Obama, Charles WILSON nominated by Clinton, Robin ROSENBAUM nominated by Obama, Jill Pryor nominated by Obama So all 4 judges who ruled against the plain meaning of Title IX were nominated by Democrat Presidents and all 7 judges who ruled in favor of the plain meaning of Title IX in the Adams case were nominated by Republican Presidents. https://www.ca11.uscourts.gov/judges
Here are quotes from the Adams majority opinion:
“Separating school bathrooms based on biological sex passes constitutional muster and comports with Title IX.”
“It is no surprise that the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence. In fact, “sex-separation in bathrooms dates back to ancient times, and, in the United States, preceded the nation’s founding.” W. Burlette Carter, Sexism in the “Bathroom Debates”: How Bathrooms Really Became Separated by Sex, 37 Yale L. & Pol’y Rev. 227, 229 (2019). “
“In light of the privacy interests that arise from the physical differences between the sexes, it has been commonplace and universally accepted—across societies and throughout history—to separate on the basis of sex those public restrooms, locker rooms, and shower facilities that are designed to be used by multiple people at a time.”
Quoting the U.S. Supreme Court’s 1973 decision in Frontiero v. Richardson, on page 27, the court held that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”
On page 29, the court concludes that Bostock does not apply to Title IX:
“Bostock involved employment discrimination under Title VII of the Civil Rights Act —specifically, various employers’ decisions to fire employees based solely on their sexual orientations or gender identities... the Supreme Court expressly declined to address the issue of sex-separated bathrooms and locker rooms, stating: “Under Title VII, . . . we do not purport to address bathrooms, locker rooms, or anything else of the kind…”
“Schools are not workplaces and children are not adults.”
“The contention that the School Board’s bathroom policy relied on impermissible stereotypes associated with Adams’s transgender status is wrong. The bathroom policy does not depend in any way on how students act or identify. The bathroom policy separates bathrooms based on biological sex, which is not a stereotype.”
“This appeal requires us to interpret the word “sex” in the context of Title IX and its implementing regulations. We cannot, as the Supreme Court did in Bostock, decide only whether discrimination based on transgender status necessarily equates to discrimination on the basis of sex... This is because Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for differentiating between the sexes when it comes to separate living and bathroom facilities, among others. Therefore, if to “provide separate toilet . . . facilities on the basis of sex” means to provide separate bathrooms on the basis of biological sex, then the School Board’s policy fits squarely within the carve-out.”
“Reputable dictionary definitions of “sex” from the time of Title IX’s enactment show that when Congress prohibited discrimination on the basis of “sex” in education, it meant biological sex, i.e., discrimination between males and females.”
“If sex were ambiguous, it is difficult to fathom why the drafters of Title IX went through the trouble of providing an express carve-out for sex-separated living facilities, as part of the over-all statutory scheme. For this reason alone, reading in ambiguity to the term “sex” ignores the overall statutory scheme and purpose of Title IX, along with the vast majority of dictionaries defining “sex” based on biology and reproductive function.”
Spending Clause requires the normal interpretation of Title IX
“Even if the term “sex,” as used in Title IX, were unclear, we would still have to find for the School Board. This is because Congress passed Title IX pursuant to its authority under the Spending Clause. U.S. Const. art. I, § 8, cl. 1 (“We have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause.”). And “if Congress intends to impose a condition on the grant of federal moneys under its Spending Clause authority, it must do so unambiguously.”
“The spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The “legitimacy of Congress’ power to legislate under the Spending Clause… rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’”
Under the Spending Clause’s required clear-statement rule, the School Board’s interpretation that the bathroom carve-out pertains to biological sex would only violate Title IX if the meaning of “sex” unambiguously meant something other than biological sex.
On page 52, a concurring opinion adds: “A definition of “sex” beyond “biological sex” would not only cut against the vast weight of drafting-era dictionary definitions and the Spending Clause’s clear-statement rule but would also force female student athletes “to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female… Such a proposition—commingling both biological sexes in the realm of female athletics—would “threaten to undermine one of Title IX’s major achievements, giving young women an equal opportunity to participate in sports… Title IX “precipitated a virtual revolution for girls in sports... Since Title IX was enacted, the number of girls playing high school sports has gone from one in twenty-seven, to one in three.”
“It is neither myth nor outdated stereotype that there are inherent differences between those born male and those born female and that those born male, including transgender women and girls, have physiological advantages in many sports… Studies have shown that these biological differences allow post-pubescent males to ‘jump (25%) higher than females, throw (25%) further than females, run (11%) faster than females, and accelerate (20%) faster than females’ on average.”
D. N. v DeSantis (11th Circuit, 2023)
Another Eleventh Circuit case, this time involving a biological male who wanted to play in girls sports. He claimed that a 2021 Florida law prohibiting males from playing in girls sports violated Title IX. Here is a link to the 39 page decision published on November 6, 2023: https://adfmedialegalfiles.blob.core.windows.net/files/DeSantisDistrictCourtRuling.pdf
The judge was Roy Altman who was nominated by Trump. Here are quotes from his decision: “SB 1028’s gender-based classifications are rooted in real differences between the sexes—not stereotypes. In requiring schools to designate sports-team memberships on the basis of biological sex, the statute adopts the uncontroversial proposition that most men and women do have different (and innate) physical attributes.”
“These (Title IX) regulations, which appear in Part 106 of the Code of Federal Regulations, bar sex discrimination in a wide variety of education programs and facilities, including interscholastic athletics… In Adams, the Eleventh Circuit held that Title IX’s reference to “sex” does not include “gender identity.”
A.C. v. Metro. Sch. Dist. of Martinsville (7th Circuit. 2023),
Three biological girls pretending to be boys wanted to use the boys bathroom and locker rooms at their schools but were denied by a school board policy prohibiting boys from using girls bathrooms and girls from using boys bathrooms. They then filed a Title IX complaint. The Seventh Circuit ruled that the school district violated Title IX. The three judges were Frank EASTERBROOK, who was nominated by Reagan, Diane WOOD, who was nominated by Clinton and John LEE , who was nominated by Obama. Here is a link to this 26 page decision:
https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D08-01/C:22-1786:J:Wood:aut:T:fnOp:N:3083101:S:0
Here are two quotes from this decision:
“Applying Bostock’s reasoning to Title IX, we have no trouble concluding that discrimination against transgender persons is sex discrimination for Title IX purposes, just as it is for Title VII purposes.”
“Title IX does not define sex. There is insufficient evidence to support the assumption that sex can mean only biological sex. “
The first quote simply mis-reads Bostock. But the second quote is much more troubling. The claim that there is “insufficient evidence” that the word sex in Title IX is completely absurd. Instead, there is a mountain of evidence in favor of this conclusion and no evidence refuting it.
Bridge ex rel. Bridge v. Oklahoma Dep’t of Educ (10th Circuit 2024)
On January 12, 2024, a Title IX decision was made in the Tenth Circuit by judge Jodi Dishman who was nominated by Trump. The case involved the legality of Oklahoma Senate Bill 615 which restricted bathroom use in schools to either the male sex or the female sex and that each school should have at least one non-sex assigned bathroom. Three Trans-sexual students claimed that this law violated Title IX. Here is this decision: https://caselaw.findlaw.com/court/us-dis-crt-w-d-okl/115714194.html
Here are quotes from this decision:
“Plaintiffs argue that they were subjected to sex discrimination in violation of Title IX because of the way S.B. 615 defines “sex.” They argue that since the Supreme Court has concluded transgender status is “inextricably bound up with sex” when analyzing Title VII, that excluding a transgender student from a restroom on the basis of biological sex is a violation of Title IX.. “Title VII, however, is a vastly different statute from Title IX ․” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005).”
“Plaintiffs argue that if the Court focuses exclusively on the term “sex”, then it will forget that “ ‘[t]he question isn't just what ‘sex’ mean[s], but what [a statute barring sex discrimination] says about it.’ ” See Pls.’ Resp. [Doc. No. 53] at 27 (citing Bostock, 140 S. Ct. at 1739). “
“However, given the text of Title IX, which is different than that of Title VII, the definition of “sex” is determinative. Title IX explicitly allows schools to “maintain[ ] separate living facilities” and “separate toilet, locker room, and shower facilities” for the “different sexes.” Thus, if the term “different sexes” is referring to different biological sex, then Oklahoma's law is perfectly in sync with Title IX.”
2024 Title IX Circuit Court Rulings against the Biden Title IX Final Rule
On April 19, 2024, Biden administrator, Miguel Cardona published the Biden Title IX Final Rule – which mistakenly assumed that the 2020 Bostock Title VII decision applied to Title IX. In response, 26 states filed complaints and asked for Preliminary Injunctions against the Biden Title IX Final Rule. Below is a brief summary of these federal cases.
Tennessee v Cardona (6th Circuit 2024)
On April 30, 2024, Tennessee Attorney General Herbert Slater filed a motion in the Sixth Circuit asking for a preliminary injunction against the Biden Final Rule. His motion was joined by the states of Kentucky, Indiana, Ohio, Virginia and West Virginia. The motion asserted that the word “sex” in Title IX means biological sex not gender identity. On June 17, 2024, the federal court granted the Preliminary Injunction. Here is a link to this 93 page decision:
https://cases.justia.com/federal/district-courts/kentucky/kyedce/2:2024cv00072/104801/100/0.pdf?ts=1718736385
The Sixth Circuit District Court judge, Charles Atchley, was nominated by Trump. Here are quotes from this decision:
Rather than promote the equal opportunity, dignity, and respect that Title IX demands for both biological sexes, Defendants’ Guidance Documents do the opposite in an effort to advance an agenda wholly divorced from the text, structure, and contemporary context of Title IX.
To allow Defendants’ unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress.
The US Department of Education filed an appeal. This appeal was rejected by the Sixth Circuit Court of Appeals. NALBANDIAN, J., delivered the opinion of the court, was nominated by Trump. Joan LARSEN concurred was also nominated by Trump.
Danny BOGGS, J. who delivered a dissenting opinion was nominated by Reagan. However, his dissent did not agree with the Biden Final Rule. He merely asserted that the Temporary Injunction should not have been issued due to his belief that the Biden Final Rule was not actually a “final” decision (even though it clearly was a final decision).
On August 16, 2024, as we noted earlier, the appeal from the Sixth Circuit Tennessee decision was rejected by the US Supreme Court.
Here are quotes from the Tennessee Circuit Court decision:
“Title IX was enacted for the protection against discrimination of biological females. However, the Final Rule may likely cause biological females more discrimination than they had before Title IX was enacted.”
“Importantly, Defendants did not consider the effect the Final Rule would have on biological females by requiring them to share their bathrooms and locker rooms with biological males. Further, by allowing biological men who identify as a female into locker rooms, showers, and bathrooms, biological females risk invasion of privacy, embarrassment, and sexual assault. This result is not only impossible to square with Title IX, but with the broader guarantee of educational protection for all students. “
“The Sixth Circuit has explained that “the Court in Bostock was clear on the narrow reach of its decision and how it was limited only to Title VII itself. The Supreme Court noted that ‘none of’ the many laws that might be touched by their decision were before them and that they ‘do not prejudge any such question today.’” As a result, the Sixth Circuit properly concluded that “Bostock extends no further than Title VII.” Id; see also Skrmetti, 83 F.4th at 484 (holding that Bostock’s reasoning “applies only to Title VII.”)
Texas v Cardona (5th Circuit 2024)
Also on April 29, 2024, the Texas Attorney General, Ken Paxton, filed a motion asking for a preliminary injunction against the Biden Final Rule. The Texas motion stated essentially the same facts as the Tennessee case. On July 11, 2024, Judge Reed O’Conner issued a 112 page ruling granted the Injunction. He was nominated to the Fifth Circuit by Bush II.
Here is a quote from this decision: “the plain meaning of the term sex as used in § 106.33 when it was enacted by the Department following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.”
On August 5, 2024, Judge O’Connor issued a final decision in the case granting summary judgment to Texas. Here is a link to this 113 page decision: https://cases.justia.com/federal/district-courts/texas/txndce/4:2023cv00604/377970/45/0.pdf?ts=1722948751
Louisiana v US Department of Education (5th Circuit 2024)
Also on April 29, 2024, the Louisiana Attorney General, Elizabeth Murril, filed a motion in the Fifth Circuit asking for a preliminary injunction against the Biden Final Rule. Her motion was joined by the states of Mississippi, Montana and Idaho. The Louisiana motion stated essentially the same facts as the Tennessee case.
The court granted the injunction on June 13, 2024. The judge TERRY A. DOUGHTY was nominated by Trump. Here is a link to this 40 page ruling: https://storage.courtlistener.com/recap/gov.uscourts.lawd.205659/gov.uscourts.lawd.205659.53.0.pdf
Here are quotes from this ruling:
“The (Biden) Final Rule redefines “sex discrimination” to include gender identity, sexual orientation, sex stereotypes, and sex characteristics; preempts state law to the contrary; requires students to be allowed to access bathrooms and locker rooms based on their gender identity; prohibits schools from requiring medical or other documentation to validate the student’s gender identity; requires schools to use whatever pronouns the student requires; and imposes additional requirements that will result in substantial costs to the school.”
“The text of Title IX confirms that Title IX was intended to prevent biological women from being discriminated against in education in favor of biological men. Title IX lists several exemptions which use the language “one sex” or “both sexes” showing that the statute was referring to biological men and biological women, not gender identity, sexual orientation, sex stereotypes, or sex characteristics.”
The US Department of Education filed an appeal. This appeal was rejected by the Fifth Circuit Court of Appeals on July 17, 2024. Here is a link to this decision: https://opi.mt.gov/Portals/182/Title%20IX/2024.07.17%20Order%20denying%20stay%20-%20Louisiana%20v.%20Dept.%20of%20Ed.%20(circuit%20court).pdf?ver=2024-08-01-113105-643
Edith Jones was nominated to the Fifth Circuit by Reagan. Kyle Duncan was nominated to the Fifth Circuit by Trump. Dana Douglas was nominated to the Fifth Circuit by Biden and would have granted the Biden administration appeal. The Biden appeal was then rejected by the US Supreme Court on August 16, 2024.
Alabama v US Secretary of Education (11th Circuit 2024)
Also on April 29, 2024, Alabama filed a motion in the Eleventh Circuit asking for a preliminary injunction against the Final Rule. Their motion was joined by the states of Florida, Georgia, South Carolina and three other advocacy groups which included a Free Speech advocacy group and a parents rights group. The Alabama motion stated essentially the same facts as the Tennessee case. On July 30, 2024, an Alabama judge (who was appointed by Biden) ruled against granting a Temporary Injunction. However, the 11th Circuit immediately issued an “Administrative Injunction” and on August 22, 2024 overturned the lower court decision by granting a Preliminary Injunction to the states. Here is a link to the 29 page decision: https://adflegal.org/wp-content/uploads/2024/08/Alabama-v-US-Secretary-of-Education-2024-08-22-11th-Circuit-Order.pdf
As noted earlier, WILSON, BRANCH , and LUCK were all appointed by Trump. Here are quotes from their decision:
“Before this action, every court to consider the issue across the nation—seven district courts and two courts of appeals preliminarily enjoined enforcement of the rule. The district court here, by contrast, refused to enjoin the rule one day before it was supposed to go into effect.”
“After Title IX’s enactment in 1972, implementing regulations were adopted, permitting separation based on biological sex in restrooms, locker rooms, and showers, as well as in sports. See Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 45 C.F.R. § 86.33 (1974) (“the 1974 Rule”)(restrooms, locker rooms, showers); id. § 86.41 (athletics).”
“Defining “sex” in Title IX to include “gender identity” “ignored the overall statutory scheme” because it would render Title IX’s many sex-based exceptions meaningless and “would provide more protection against discrimination on the basis of transgender status... than it would against discrimination on the basis of sex.”
Oklahoma v. Cardona (10th Circuit 2024)
On May 6, 2024, Oklahoma filed a motion in the Tenth Circuit asking for an Injunction against the Final Rule. The Oklahoma motion stated essentially the same facts as the Tennessee case. On July 31, 2024, the Oklahoma temporary injunction was granted. Here is a link to this decision: https://storage.courtlistener.com/recap/gov.uscourts.okwd.126841/gov.uscourts.okwd.126841.48.0.pdf
The opinion was written by Jodi Dishman was nominated for the Tenth Circuit by Trump. Here are quotes from this decision:
“At the time Title IX was enacted, ‘sex’ was defined by biology and reproductive functions”—not gender identity or sexual orientation. “
“Such an interpretation would be at odds with Title IX’s purpose. Leading up to Title IX’s passage, all relevant congressional statements, hearings, and reports focused on discrimination women faced in education. See 116 Cong. Rec. 6398, 6400 (1970) (Rep. Martha Griffiths) (“It is shocking and outrageous that universities and colleges, using Federal moneys, are allowed to continue treating women as second-class citizens.”); 117 Cong. Rec. 22735, 22735 (1971) (Sen. Birch Bayh) (“To my mind our greatest legislative failure relates to our continued refusal to recognize and take steps to eradicate the pervasive, divisive, and unwarranted discrimination against a majority of our citizens, the women of this country.”); 118 Cong. Rec. 5806, 5808 (1972) (Sen. Birch Bayh)
“This purpose is confirmed by Title IX’s text. Yet the (Biden) Final Rule elevates gender identity and its accompanying protections above that of biological sex—i.e., women. Such a contradiction of Title IX’s text and an erosion of its purpose cannot be permitted absent congressional action.”
Arkansas v. US Department of Education (8th Circuit 2024)
On May 7, 2024, the Arkansas Attorney General filed a federal motion asking for an injunction against the Final Rule. His motion was joined by the states of Missouri, Iowa, Nebraska, North Dakota and South Dakota. The Arkansas motion stated essentially the same facts as the Tennessee case. On July 24, 2024 the Arkansas temporary injunction was granted. The decision was granted by Rodney Sippel. He was nominated by Clinton and therefore represents the first federal judge who was nominated by a Democrat President to honor the plain meaning of Title IX.
Here is a link to this 56 page decision:
https://arkansasag.gov/wp-content/uploads/2024-07-24-Arkansas-v-USDOEd-Title-IX-Order-Granting-PI.pdf
Here are quotes from this decision:
“The unambiguous plain language of Title IX and the legislative history support their position that the term “sex” means biological sex.”
“At the time Title IX was enacted in 1972, the term “sex” was understood to mean the biological distinctions between males and females. The legislative history, which includes statistics on the number of women and men being included in various programs and activities, shows that Congress was concerned about the unequal treatment between men and women for admissions opportunities, scholarships, and sports.”
“The reasoning of Bostock, a Title VII employment discrimination case, should not apply to Title IX… the Supreme Court has said that “Title VII is a vastly different statute from Title IX.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005)
“Title IX conditions an offer of federal funding on a recipient’s promise not to discriminate, in what amounts essentially to a contract between the Government and the recipient. That contractual framework distinguishes Title IX from Title VII, which is framed in terms not of a condition but of an outright prohibition of discrimination.” Gebser, 524 U.S. at 277 “
“Since Title IX was enacted pursuant to Congress’s authority under the Spending Clause of the Constitution, the Supreme Court “insists that Congress speak with a clear voice” when imposing conditions on the receipt of federal funds, “recognizing that there can, of course, be no knowing acceptance of the terms of the putative contract if a State is unaware of the conditions imposed by the legislation or is unable to ascertain what is expected of it.” Davis, 526 U.S. at 640 “
“Significantly, Title IX includes several exceptions to the prohibition on sex discrimination that are not present in Title VII. Further, Title IX is about schools, and as the Supreme Court has observed, “schools are unlike the adult workplace.” Davis, 526 U.S. at 675”
Kansas v. US Department of Education (10th Circuit 2024)
On May 14, 2024, Kansas filed a Tenth Circuit motion asking for an injunction against the Biden Final Rule. Their motion was joined by the states of Alaska, Utah and Wyoming and several advocacy groups including Moms for Liberty. The Kansas motion stated essentially the same facts as the Tennessee case. On July 2, 2024, the court granted the Injunction. The judge was John W. Broomes who was nominated by Trump. Here is the link to this decision:
https://www.govinfo.gov/content/pkg/USCOURTS-ksd-5_24-cv-04041/pdf/USCOURTS-ksd-5_24-cv-04041-0.pdf
Here are quotes from this decision:
“In support, (the Biden) DoE repeatedly references the Supreme Court’s decision in Bostock throughout the Final Rule. DoE acknowledges that the Supreme Court expressly stated that its decision in Bostock was only applicable to Title VII but relies on that decision for authority to promulgate the new regulations.”
“The court finds that the unambiguous plain language of the statutory
provisions and the legislative history make clear that the term “sex” means the traditional concept of biological sex in which there are only two sexes, male and female… Given this background, the plain language of “sex” in Title IX does not mean “gender identity.”
“Significantly, the purpose of Title IX was to protect “biological women from discrimination in education; such purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”
“The (Biden) Final Rule would, among other things, require schools to subordinate the fears, concerns, and privacy interests of biological women to the desires of transgender biological men to shower, dress, and share restroom facilities with their female peers.”
“Title IX was enacted pursuant to Congress’s authority under the Spending Clause, which marks another substantial distinguishing feature between this case and Bostock. Under Spending Clause jurisprudence, “Congress may attach conditions on the receipt of federal funds but... it must do so unambiguously,” so that the States may “exercise their choice knowingly, cognizant of the consequences of their participation… Title IX did not impose a condition regarding gender identity discrimination.”
Ninth Circuit Title IX rulings
The Ninth Circuit has also repeatedly (and incorrectly) concluded that Bostock applied to Title IX when it held that “discrimination on the basis of sexual orientation or gender identity is a form of sex-based discrimination under Title IX.” Here we will summarize three of these cases.
Grabowski v. Arizona Bd. Of Regents (9th Cir. 2023)
Grabowski was a student at the University of Arizona who claimed to be discriminated against because he was gay. Using Bostock, the Ninth Circuit found that Title IX bars sexual harassment on the basis of perceived sexual orientation. The three judges were Susan P. Graber who was nominated by Clinton. Mark J. Bennett who was nominated by Trump and Roopali H. Desai who was nominated by Biden. Here is the link to the ruling:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/13/22-15714.pdf
Here is a quote from the ruling: “In Bostock v. Clayton County (2020), the Supreme Court brought sexual-orientation discrimination within Title VII’s embrace. Construing Title IX’s protections consistently with those of Title VII, the panel held that discrimination on the basis of sexual orientation is a form of sex-based discrimination under Title IX. “
Doe v. Horne (9th Cir. 09/2024)
In 2022, Arizona passed a law prohibiting biological males from participating in girls sports. The Ninth Circuit enjoined Arizona from barring Plaintiffs Jane Doe and Megan Roe from playing school sports consistent with their gender identity. The court falsely ruled that before puberty, there are no significant differences in athletic performance between boys and girls. The three judges were Kim McLane Wardlaw who was nominated by Clinton, Ronald M. Gould, who was nominated by Clinton and Morgan Christen, who was nominated by Obama.
Here is a link to this ruling: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/09/23-16026.pdf
Here is a quote from this ruling: “This is the essence of discrimination. See Bostock v. Clayton County (2020).”
This case is still ongoing. Here is a link to all court documents: https://www.courtlistener.com/docket/67215664/doe-v-horne/
Roe v Critchfield (9th Circuit 2025)
In March 2025, the Ninth Circuit appears to have finally reversed course. A transgender student claimed that an Idaho law requiring students to use bathrooms according to their biological sex does not violate Title IX. The Ninth Circuit ruled in favot of Idaho that it could require students to use bathrooms according to their biological sex. The court emphasized the state's interest in protecting student bodily privacy and relied on the Spending Clause "clear notice rule" regarding Title IX's application to this specific law. The three judges in this ruling were Kim McLane Wardlaw who was nominated by Clinton, Mark J. Bennett, who was nominated by Trump and Morgan Christen, who was nominated by Obama.
Here is a link to this 36 page ruling:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/03/20/23-2807.pdf
Here are quotes from this ruling:
“SAGA failed to meet its burden to show that the State had clear notice at the time it accepted federal funding that Title IX prohibited segregated access to the facilities covered by S.B. 1100 on the basis of transgender status.”
“The district court reasoned that the State’s privacy interest is especially important for school-aged children who are still developing mentally, physically, emotionally, and socially, and that “asking them to expose their bodies to students of the opposite sex (or to be exposed to the bodies of the opposite sex) brings heightened levels of stress.”
“Defendants (Idaho) argued in the district court and on appeal that SAGA’s Title IX claim fails because, “sex” as used in Title IX, refers to sex assigned at birth and § 1686, together with § 106.33, authorizes schools to maintain sex-separated facilities. In this view, because Title IX authorizes schools to segregate the facilities regulated by S.B. 1100 on the basis of “biological sex” or sex assigned at birth, excluding transgender students from facilities corresponding to their gender identity cannot violate Title IX’s prohibition on sex discrimination. The district court agreed with Defendants. In doing so, the court relied heavily on Adams v. Sch. Bd. Of St. Johns County, 57 F.4th 791 (11th Cir. 2022).”
(Ninth) Circuit precedent establishes that discrimination on the basis of transgender status is a form of sex-based discrimination. See Bostock v. Clayton County, Georgia… We applied Bostock’s reasoning to Title IX’s protections against discrimination on the basis of gender in Doe v. Snyder. (9th Cir. 2022) (“We construe Title IX’s protections consistently with those of Title VII.”). And we subsequently held in Grabowski v. Arizona Board of Regents (9th Cir. 2023), that “discrimination on the basis of sexual orientation is a form of sex-based discrimination under Title IX.”
Though we have extended Bostock’s reasoning to Title IX, Bostock did “not purport to address bathrooms, locker rooms, or anything else of the kind.” The Supreme Court in Bostock neither adopted nor rejected this argument in the context of Title VII. Consistent with the parties’ stipulation, the Court “proceed[ed] on the assumption that ‘sex’ . . . refers only to biological distinctions between male and female.
“Under the Spending Clause… “Congress has broad power to set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out ‘unambiguously.’ Because legislation enacted pursuant to the spending power is in the nature of a contract, recipients of federal funds must accept federally imposed conditions on funds voluntarily and knowingly.”
“Applying the clear-notice rule here, we agree with the State that SAGA failed to establish that Defendants had adequate notice, when they accepted federal funding, that Title IX prohibits the exclusion of transgender students from restrooms, locker rooms, shower facilities, and overnight lodging corresponding to their gender identity. “
In short, the Clear Notice Rule in the Spending Clause has priority over Bostock.
Other Title IX cases cited by Maine
There were two other cases cited by Maine to justify their refusal to comply with the Department of Education demand to submit a new Certification letter. We will briefly review each of these cases, even though both are still ongoing.
Tirrell v. Edelblut (1st Circuit 2024)
In 2024, New Hampshire passed a law to protect girls sports. Two biological males pretending to be girls filed a Title IX compliant. Here is a link to all of the case documents. https://www.courtlistener.com/docket/69050456/tirrell-v-edelblut/
On August 24, 2024 New Hampshire filed an Objection to a Motion for a temporary injunction against their law. Here is a link to their objection: https://storage.courtlistener.com/recap/gov.uscourts.nhd.63968/gov.uscourts.nhd.63968.59.1_1.pdf
Here are quotes from their objection:
“As numerous courts have found, transgender status is not a quasi-suspect class that would trigger heightened scrutiny. L.W. v. Skrmetti, 73 F.4th 408, 420 (6th Cir. 2023). Neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class.”. Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657, 668 (W.D. Pa. 2015) (Third Circuit has not recognized transgender as a suspect classification); Gregory v. Bustos, No. 21-cv-4039, 2023 U.S. Dist. LEXIS 146192, *24 (C.D. Ill. Aug. 21, 2023) (Seventh Circuit has not recognized transgender as a suspect classification); Poe v. Drummond, 697 F. Supp. 3d 1238, 1252 (N.D. Okla. 2023) (Tenth Circuit has not recognized transgender as a suspect classification)…. The Sixth and Eleventh Circuits have expressly refused to do so. L.W., 73 F.4th at 420; Eknes-Tucker v. Governor, of the State of Ala., 80 F.4th 1205, 1227 (11th Cir. 2023).”
“Establishing a new suspect class must be left to the Supreme Court because recognizing new suspect classes can frustrate (or even terminate) public debate, legislative action, and development of “evolving social norms and innovative medical options.”
“Courts have “rarely deemed a group a quasi-suspect class,” Adams, 57 F.4th at 803 n.5, and has not done so “in over four decades.” L. W. by & through Williams v. Skrmetti.”
“Their argument that Title IX’s prohibition against discrimination “on the basis of sex” implies an expansive definition of “sex” has been rejected by many courts—including the United States Supreme Court. See Dept. of Ed., et al. v. Louisiana, et al., 603 U.S. ____ (2024) (per curiam) (where the Supreme Court unanimously agreed that the multiple injunctions should stay in place related to three provisions of the new Title IX rules, including “the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.”)”
“Plaintiffs rely on Bostock v. Clayton County, (2020), for their contrary view of Title IX. But Bostock simply does not apply in this context.”
On September 10, 2024, the Court issued an Order granting the motion for a preliminary injunction. The judge was Landya McCafferty who was nominated by Obama. Here is a link to this order:
https://storage.courtlistener.com/recap/gov.uscourts.nhd.63968/gov.uscourts.nhd.63968.70.0.pdf
Here are quotes from this order:
“Before puberty, there are no significant differences in athletic performance between boys and girls.”
“In Bostock v. Clayton County, (2020) the Supreme Court analyzed the relationship between discrimination based on homosexuality or transgender status and discrimination based on sex… While Bostock concerned Title VII, its analysis of the logical relationship between sex discrimination and transgender discrimination extends to other contexts.”
“The State defendants assert that Bostock’s analysis does not apply to Title IX claims. Their arguments are not persuasive.”
“While the Supreme Court recently upheld (in a per curiam opinion on an emergency application for relief) the Fifth and Sixth Circuits’ refusals to stay preliminary injunctions against the Department of Education’s new administrative rule interpreting Title IX to bar discrimination on the basis of transgender status, it expressed no opinion as to whether the rule correctly interpreted Title IX. See Dep’t of Ed. v. Louisiana, 144 S. Ct. 2507, 2509-10 (2024). True, the per curiam opinion stated that the Court unanimously “accepted” that preliminary injunctive relief was proper as to the provisions of the rule found unlawful by the district courts, including the provision barring transgender-based discrimination. Id. But the primary issue in front of the Supreme Court was whether “those provisions should be severed and . . . the other provisions of the new rule should . . . be permitted to take effect” during the pendency of the Department’s appeals of the preliminary injunctions. “
To my knowledge, this is the first and only judge in the nation to claim that the August 2024 Supreme Court ruling was merely about severing certain provisions. This claim is shocking in light of the fact that the US Supreme Court in their ruling specifically stated that their agreed with Louisiana’s conclusion that Title IX was about biological sex and protect the right to privacy in bathrooms and locker rooms.
This same judge insisted that Bostock applies to Title IX despite the fact that numerous courts have concluded that Bostock does not apply to Title IX. So this judge is clearly living in fantasy land. For example, this judge also stated: “Just because Title IX authorizes sex-segregated facilities does not mean . . . that they must be segregated based only on biological sex and cannot accommodate gender identity.”
The above sentence represents the fundamental flaw in the claim that transgender girls who are in fact biological boys should be allowed to play in girls sports. The judge sees no reason why New Hampshire can not protect BOTH girls rights to fair sports opportunities AND at the same time allow transgender girls who are in fact biological boys to compete in girls sports. The reason this is not possible to protect both groups is that boys have significant physical advantages over girls and thus allowing any boys to compete in girls sports deprives girls of fair opportunities and is therefore in violation of Title IX.
Equally shocking, this same judge also misinterpreted the US Constitution’s Spending Clause. Here is her quote on page 41: “the plaintiffs do not seek money damages; as such, the concerns animating the Supreme Court’s Spending Clause jurisprudence are not implicated.”
There are at least wo problems with the above sentence. First, the spending clause is not about whether a plaintiff seeks money damages, it is about whether the federal government gives money to state agencies. Second, the Spending Clause does not come from a Supreme Court ruling, it comes from the US Constitution! One can see why Maine wants to rely on the above ruling. But the above ruling suffers from several huge problems. It mistakenly claims that there are no differences between pre-puberty boys and girls, it mistakenly claims that Bostock applies to Title IX and it mistakenly misreads the Spending Clause of the US Constitution. While this is an ongoing case, the court’s ruling is almost certain to be eventually overturned.
Doe v. Hanover Cnty. Sch. Bd. (4th Circuit 2024)
This is the final case Maine is relying on. On August 16, 2024, Virginia Fourth Circuit judge Hannah Lauck granted an injunction against a school board which refused to let a biological male play on a girls tennis team. Hannah Lauck was nominated by Obama. Lauck relied on the BPJ decision, which relied on the Grimm decision which relied on a mistaken interpretation of Bostock. Here is a link to this case:
https://cases.justia.com/federal/district-courts/virginia/vaedce/3:2024cv00493/556494/61/0.pdf?ts=1723909814
Here is a quote from this case: “Trangender girls and cisgender girls are similarly situated in that they share a gender identity.”
There are several problems with the above claim. First, the school board policy is based purely on biological sex. In terms of this key determinant, trangender girls and cisgender girls are not “similarly situated”, because transgender girls are actually biological males while cisgender are biological females. Second, Title IX discrimination is based on biological sex, not gender identity. Third, Bostock does not apply to Title VII. Therefore, both BPJ and Grimm were wrongly decided and thus, this case is wrongly decided also. While this case is still ongoing, it is certain to be overturned by the US Supreme Court that has already ruled in this matter.
Crazy Cult misunderstanding of Intersex People
The dissent in Adams claimed that Title IX does not adequately define sex because it does not provide guidance of how to protect the rights of “intersex” people. This is factually not correct. Biologically and genetically speaking, any person with a Y chromosome is a male – regardless of the number of X chromosomes they may have - and anyone without a Y chromosome is a female. Thus, there are no intersex people. But equally important, genetic surveys of Trans individuals seeking to find a genetic cause to Transgenderism have found no relationship between Transgenderism and genetics. In plain English, the rate of abnormal X and Y chromosomes in Transgender people is the same as the rate in the general population. See https://pmc.ncbi.nlm.nih.gov/articles/PMC8799808/
Thus, Transgenderism is purely a mental health problem. It has no physical genetic or biological basis. And biological sex is binary. There are no other options and there is no continuum or spectrum. Finally, giving a child toxic Trans drugs and mutilating their sex organs does not magically change them from being a boy to a girl. It simply gets them addicted to drugs and sterile and unable to have children.
Conclusion
Now that we have a more accurate picture of how Circuit Courts have ruled across the US during the past five years – as well as the 2024 US Supreme Court ruling, it should be obvious that when this issue gets back to the US Supreme Court, they are going to rule in favor of the plain, simple and original meaning of Title IX.
The next question is how long will this issue take to reach the Supreme Court? Given the importance of this issue and the fact that it has already been litigated by 46 judges in 18 court rulings, it may take less than a year. Certainly no more than two years.
The final question is how many billions of dollars will Washington state tax payers be on the hook for after the Supreme Court ruling?
It could be less than one billion or more than $30 billion. Is it worth the risk?
As always, I look forward to your questions and comments.
Regards, David Spring M. Ed. Washington Parents Network
