US Supreme Court declines to lift block on expanded trans student protections

[IwantToRetire]

The US Supreme Court has temporarily blocked a new rule from the Biden administration meant to protect students from discrimination based on gender identity.

The new federal rule issued by the Biden administration in April expands the parameters of a 1972 law known as Title IX, which bars sex discrimination in schools that receive funding from the federal government, including most universities.

The rule sought to clarify the definition of "on the basis of sex" in the law to include gender identity.

Full story at https://www.bbc.co.uk/news/articles/ckg21x1j54mo

This article has a good discussion of the decision. All 9 justices agreed to uphold the block on the portion of Title IX that expanded the definition of "sex discrimination" to include gender identity. What they did not agree on was whether other parts of the new Title IX regulations, like strengthening protection against sexual violence and other sex-based harassment, could still go into effect. (The new proposed regs covered many topics. The part concerning gender identity and same sex facilities got a lot of attention but was only one of the many issues covered.)

"The high court left intact two separate orders from federal courts in Kentucky and Louisiana, which blocked the Department of Education from enforcing the entirety of the rule across 10 states. The Justice Department had asked the Supreme Court to put part of the decisions on hold, but it declined the requests.
Four of the nine justices would have let part of the rules take effect, according to the order, but all members of the court agreed that the key disputed changes, including the new definition of "sex discrimination" to include "gender identity" and the restrictions on same-sex spaces, could remain blocked.
"[A]ll Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity," the Supreme Court said in its unsigned opinion."

The dissent would have allowed other portions of the rule changes, such as those that allow nursing mothers to breastfeed, to go into effect. "By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents' alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here." . . .She noted that the unchallenged provisions included "'reasonable modifications'" that would allow new mothers to breastfeed or express breast milk or pregnant students to attend to health needs of their pregnancies. Another provision would prevent schools from making preemployment inquiries about an applicant's marital status.

https://www.cbsnews.com/news/supreme-court-biden-administration-title-ix-rule/

I think the fact that all nine justices agreed to block the portions of the regs that added gender identity to the definition of sex discrimination is encouraging.

the fact that all nine justices agreed to block the portions of the regs that added gender identity to the definition of sex discrimination is encouraging

I had understood the article to be saying this, but then thought would a court understand that, would they feel able to say it?

But perhaps like the UK, it seems that lobbying politicians, or campaigning doesn't have quite the same clout as a legal judgement.

Also a useful example for why the UK EA needs to be clarified, rather then the current wriggle out or "legal sex" being the same as actual sex.

would a court understand that, would they feel able to say it?

Sorry, I don't understand this question. I haven't read the decision but from all the quotes I've seen, it's very clear that all nine justices agree that the lower courts had the power to block the enforcement of the new gender identity and same sex spaces rules. They were arguing over whether they had the authority to block the other parts of the rule. The other parts of the rule were never litigated in the lower courts and generally, the rule is that a court should not decide something until it has been fully litigated so that the court can hear all interested parties and evaluate the litigated issues. But the majority said that there was no easy way to sever the parts that had been litigated (the gender identity and same sex spaces parts) from the rest of the rule so the whole thing had to go (at least in this stage, this is not a final ruling on the Title IX regs).

I agree that the UK needs to fix the Equality Act (tho I'm not sure what effect one's legal sex should have since in any circumstance where natal sex is important. legal sex should be irrelevant IMO).

If I misunderstood you, I apologize.

The article is very helpful, thanks GenderlessVoid. Well I say "helpful", it's also really annoying in the way it's written - "recognising" that sex discrimination includes gender identity, indeed - no it doesn't, that would be self-contradictory and lead to endless litigation.

I agree that it was a huge relief to see they all rejected the first provision and its expansion of sex discrimination to include gender identity. From what the article says, the whole rule is a dog's dinner of very helpful measures and very dangerous and contradictory measures.

This reminds me of the Spanish government's fight to get self-ID into Spanish law. The self-ID provision was bundled up with anti-discrimination measures for homosexual people and some pro-women measures and presented as a liberal and progressive bill. Conservatives/right wingers in parliament opposed it but the government got it through eventually, framing opposition as illiberal.
Sotomayor and the minority were trying to get the "good bits" of Biden's rule through which would have been great. But from what I can see, the majority view that the unchallenged provisions were not severable as currently drafted because they depended on the meaning of sex, sex discrimination in the first provision, is sound.

“Supreme Court continues to protect single sex sports and spaces” would be a better headline.

"I think the fact that all nine justices agreed to block the portions of the regs that added gender identity to the definition of sex discrimination is encouraging."

I don't know anything about US law but from what I've hear about their Supreme Court all 9 agreeing is rare, very rare, so I agree that it's encouraging.

From what the article says, the whole rule is a dog's dinner of very helpful measures and very dangerous and contradictory measures.

That's an apt description. Trump removed many protections for women, like rules regarding sexual harassment and protecting rape victims, from the Title IX regs. Biden put them back in and even expanded on them, which was heartening. But he also said sex discrimination includes gender identity and required that schools allow trans women in women's bathrooms. (Not 100% on the exact bathroom rule but it had that effect.) So the new regs were a very mixed bag.

Somewhat predictably, the Rs on the SCOTUS wanted to throw out all of it and roll back the rules to those under Trump. The Ds wanted to keep as much of the new regs as possible, As I understand it, the ruling itself was only whether the lower courts had the authority to toss out the entire reg instead of the specific provisions that had been litigated (and the Justice Dept was not even contesting whether the lower couirts had the authority to toss some of the gender stuff). It wasn't surprising (IMO) that SCOTUS found that courts have that authority. (Courts tend to have a rather expansive view of their own authority.)

I don't know anything about US law but from what I've hear about their Supreme Court all 9 agreeing is rare, very rare, so I agree that it's encouraging.

Unanimous decisions are fairly common, generally 30 - 50%. Last year, 48% of the decisions were unanimous but the year before only 29% were. https://www.scotusblog.com/2022/07/as-unanimity-declines-conservative-majoritys-power-runs-deeper-than-the-blockbuster-cases/

@GenderlessVoid
Thanks for the gloss

All 9 justices agreed to uphold the block on the portion of Title IX that expanded the definition of "sex discrimination" to include gender identity

Oompf. All nine. Wow.

That's got to hurt democrat ideologs.

Wow. All nine.
I might be saying that for a while.

The judges are seeing injustice and that gender does not equal sex and recognising them as the same would destroy protections for women.

So even in the US it's now clear that gender = sex is going to never ever pass the supreme court.

If you can get a case to the court, you know how it's likely to go on this. Everyone who has a dime they want to spare on the subject in the US will eventually throw it in this direction.

It's now only a matter of time.

This is solidified by the republican majority in the court, but those democrat appointments also agree. And that's MASSIVE.

The court can't be rigged on this in rest of my lifetime.

Wow. All nine.

This 💯 ☝️. Excellent news

Sadly mainstream US media does not recognize this being the case. For example, the NYT says the SC "continued to block, for now, Biden administration rules meant to protect transgender students in Republican states".

RedToothBrush · Today 08:59

The judges are seeing injustice and that gender does not equal sex and recognising them as the same would destroy protections for women. So even in the US it's now clear that gender = sex is going to never ever pass the supreme court.

It's pretty stunning, isn't it? I can't think of an entirely unanimous case at the USSC.

I'm sure there are plenty of unanimous decisions that fly under the radar.

The point is this is an area which is so contentious and along party lines, the fact that there's agreement under those circumstances is the stunning part.

It's almost (but not quite) like the democrats and republicans agreeing on a case relating to abortion in terms of political splits.

The fact democrat appointments are seeing injustice here, says a lot.

There are plenty of very active women campaigning for Title IX protections to be kept - Riley Gaines and many others. In a country where sports scholarships are one way in which talented young sports people fund tertiary education I would hope that the injustices against women would be very visible. Agree that mainstream media is pretty captured but surely there are only so many sports championships you can see being won by TW prefer you start questioning the equity?

Depends on whether it gets reported, whether they do actually get to see the injustices.
Also, tribalism is a huge problem in the States. It creates a blind spot. Stops people thinking or even seeing what is right in front of their eyes.
"This looks awful, but it must be ok, because it's coming from my tribe and the other tribe hate it. It's just that I have to try harder to support it because I have to support my tribe, goes the thinking. Or lack of it!

In a country where sports scholarships are one way in which talented young sports people fund tertiary education I would hope that the injustices against women would be very visible.

These regs don't cover sports. Even Biden realized what a vote killer trans women in women's sports was. The Dept of Education (the dept that issued the new Title IX regs) said those rules would be proposed later (after the Nov election).

"The U.S. Department of Education seems to be putting its long-awaited Title IX athletics rule on the back burner, according to a regulatory update from the Office of Management and Budget on Friday.

In its Spring 2024 Unified Agenda — which also included updates for high-profile forthcoming regulations on student debt relief — OMB moved the athletics proposal to a “long-term action” without a rough deadline, meaning the agency doesn’t expect a regulatory action within at least the next year.
The controversial rule is expected to provide a framework for colleges and schools to include or exclude transgender students from athletic teams aligning with their gender identities."

https://www.highereddive.com/news/title-ix-athletic-rule-delayed-2025-spring-2024-agenda/720859/

If I misunderstood you, I apologize.

Well not sure, so to try again:

What the Judges are doing, or hoping to do if allowed, is important for the reason they want to do it.

Is it legally ok to try and say that the definition of sex discrimination should be expanded to include gender identity.

The mere fact that they think this should be challenged is positive.

That's why I then referred to the UK EA because thanks to the GRA the definition of sex has been expanded by creating a catergory of women called "legal women" (which lead to the creation of the single sex exemptions which at the say time said that not only are biological women not the same as "legal" women but have the right to only work with, have services provided by actual women).

So I understood that the US Judges in challenging that are saying is it a breach of rights to tag on gender identity to the exising concept of sex discrimination.

If you are saying they dont care about the substance but are acting purely on a technical issue, then there is nothing to be celebrated.

The wider context is significant the number of legal challenges over women's sports and prisons etc is mounting so any indication of the position of the Supreme Court is important as they may get involved later.

Also bear in mind the US medical professions is starting to abandon TA talking points as detrans cases mount. The Plastic Surgeons have just indicated a shift:

https://www.mumsnet.com/talk/womens_rights/5140837-major-american-society-of-plastic-surgeons-evidence-for-gender-surgery-on-children-low-quality

Even if the Dems win Presidency they can't stop this stuff happening.

"Even if the Dems win Presidency they can't stop this stuff happening."

I'll drink to that, if it's starts falling apart over there perhaps it will accelerate the end over here. 🤞🍺

So I understood that the US Judges in challenging that are saying is it a breach of rights to tag on gender identity to the exising concept of sex discrimination.

If you are saying they dont care about the substance but are acting purely on a technical issue, then there is nothing to be celebrated.

I think they all care about the substance but that was not the issue before the Supreme Court. As I understand it, this ruling was on an appeal from two courts that said that no part of the new reg can be enforced for now. The District Courts issued preliminary injunctions and two Circuit Courts upheld those injunctions. At the District Court level, that involves looking at the substance and saying that the regs are probably illegal but it's a preliminary order. The issue hasn't been completely litigated even in the District Courts.The plaintiffs wanted an injunction immediately, before the issues could be thoroughly litigated, bc the regs were scheduled to take effect on Aug 1st.

I wouldn't call it a technical issue bc the scope of courts' power (esp as regards other branches of government) is one of the most important issues that courts address, especially in the US bc Separation of Powers is such an integral doctrine in US jurisprudence.

I think they all care about the substance but that was not the issue before the Supreme Court.

Okay thanks, well not really, as that isn't as promising in terms of repsecting women's rights. Women's rights will be decided on matter of accepted legal process, not on the valuing their right to rights.

There is a strong case for repealing the Equality Act 2010 altogether. In the U.K. everyone is equal before the law, so an equality act was never needed. What it does is protect some characteristics, but not others. If we have one at all, it should actually list the characteristics, but should be applicable to all for any type of discrimination.

I think one of the major problems with the Equality Act 2010 is that, after it became law, activist/lobby groups and NGOs treated it as a sword and not a shield. So they used it to change society via HR/EDI/local and national government policy, and to set legal precedents beneficial to their cause, rather than to solely protect people from illegal discrimination.

And I frequently wonder why the Disability Discrimination Act 1995 (and the disability-related parts of EA 2010) has never been as successful in changing society’s view of disability or willingness to accommodate disability as the EA 2010 has been for certain groups. To this day, businesses and local government facilities have made a few changes to accommodate some physical disabilities but that’s it. For example shops and restaurants, local govt buildings, and railway/bus stations are still renovated or built with steps and no lifts, or the lifts are not properly maintained. Railway companies still make physically disabled travellers jump through hoops to receive assistance in travelling by train and sometimes the promised assistance never materialises.

The lack of support for very common protected characteristics, e.g disability and age, never got the HR/EDI/corporate buy in and sponsorship that LGB and TQ characteristics got. And sometimes it feels as though only the Cheryl Sandberg ‘lean in’ type of accommodations for women in the workplace got serious support from organisations - it feels like the Covid-related WFH changes were often more helpful for some women in the workplace than all the HR policies that say ‘you can ask for job sharing or reduced hours but we don’t have to say yes to your request if we can reject it for ‘business’ reasons’.