Louisiana asks appeals court to keep Title IX rule protecting LGBTQ+ students on hold

On Monday, the Fifth Circuit Court of Appeals in New Orleans heard oral arguments in the case stemming from Louisiana’s lawsuit.

“Given the fact that the United States Supreme Court has already denied stays on these injunctions, I’m optimistic that this court will also uphold the injunction,” Louisiana Attorney General Liz Murrill told reporters after the Monday evening hearing.

At issue is the new U.S. Department of Education rule that says discrimination against students based on sexual orientation and gender identity is prohibited under Title IX, a 1972 federal law that bans sex-based discrimination in schools and colleges that receive federal funding. Other provisions of the rule add protections for pregnant students and expand the definition of sexual harassment at schools and colleges.

The rule, which was set to take effect Aug. 1, does not address transgender students’ participation in school sports, a highly contentious issue that will be the subject of a separate directive. 

The new federal regulations could invalidate Louisiana laws that forbid transgender people from using school bathrooms that match their gender identity and protect teachers who refuse to refer to students by their preferred names and pronouns. If the rules took effect and Louisiana was found in violation of them, the state would face the prospect of losing billions of dollars in federal funding for schools, Murrill said Monday.

Murrill’s office filed a federal lawsuit to block the new Title IX rule immediately after it was issued in April. The lawsuit, which three other states joined, said that Democratic President Joe Biden’s administration had overstepped its authority and upended Title IX, which they argued was intended to protect only biological girls and women.

“This law was driven originally by a desire to stop discrimination against women in the education environment,” Murrill said Monday. “It is now being turned on its head.”

In a court filing, the state’s attorneys said the new Title IX interpretation would “transform” schools and harm students.

“Boys and girls will be forced to share bathrooms, locker rooms, and lodging on overnight field trips with members of the opposite sex, including adults,” the Sept. 19 filing said. “Students and teachers will be forced to use whatever pronouns a student demands based on his or her self-professed ‘gender identity.’”

Lawyers for the federal government argue that the new Title IX rule is based on a 2020 U.S. Supreme Court ruling, Bostock v. Clayton County, that said a federal ban on sex-based discrimination in the workplace also prohibits discrimination against gay and transgender people. The same logic applies to discrimination in schools, the Biden administration says.

“It is impossible to explain what it is you’re doing when you are intentionally discriminating against someone based on their gender identity without consideration of that person’s sex,” said Jack Starcher, an attorney representing the federal government, at Monday’s hearing. “Discrimination based on gender identity is discrimination based on sex.”

The Biden administration asked the court to limit the pause on the law to just those parts dealing with gender identity, allowing other provisions — such as those dealing with lactation spaces for pregnant students — to take effect while the legal challenges proceed. But Louisiana’s lawyers argue the rule’s expanded definition of sex-based discrimination touches every aspect of the law.

“Their new definitions are pervasive throughout the rule,” Murrill said after the hearing, adding that it would be confusing for schools to determine which parts of the new rule were in effect and which were paused.

The Fifth Circuit Court of Appeals is considered one of the country’s most conservative appellate courts. Judge Jerry Smith, one of the three presiding judges at Monday’s hearing, appeared skeptical of the Biden administration’s rule.

Smith, who was appointed by former President Ronald Reagan, gave a hypothetical scenario in which a biological female student objected to playing volleyball during physical education class alongside a transgender girl. Under the new rule, Smith suggested, the student would lose access to her P.E. class if she refused to participate.

That “young woman would be denied the benefits of educational services by saying, ‘I don’t want this great big burly guy coming in here and competing against me,’” he said, referring to the transgender student as a “guy.”

The appeals court is expected to rule in the coming weeks. Murrill said she expects that one of the cases challenging the new Title IX will eventually head to the U.S. Supreme Court.