On Friday, the U.S. Supreme Court denied an emergency application by the Biden Administration for partial stays on orders entered by district courts and affirmed by the Fifth and Sixth Circuits. As usual in such cases, the Court’s order was Per Curiam. The order lays out the procedural history succinctly:
The Department of Education recently issued a new rule implementing Title IX of the Education Amendments of 1972. The rule newly defined sex discrimination to “includ[e ] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” 89 Fed. Reg. 33886 (2024).
Several States and other parties sought preliminary injunctions against the new rule, arguing among other things that the rule exceeded the bounds of the statutory text enacted by Congress. District Courts in Louisiana and Kentucky agreed with the plaintiffs and preliminarily enjoined enforcement of the rule in the plaintiff States. The Courts of Appeals for the Fifth and Sixth Circuits then declined to stay the injunctions in the interim period while those courts consider the Government’s appeals of the preliminary injunctions.
One of the district court orders under review was by Judge Danny Reeves of Kentucky. The order begins this way:
There are two sexes: male and female.
That opening line is footnoted:
The defendants made this concession during oral arguments on the plaintiffs’ motion for injunctive relief. The parties have agreed to little else.
Judge Reeves’ opinion is long and persuasive, but that gives you a sense of where he is coming from.
Four justices dissented from the Supreme Court’s order denying the administration’s request for an emergency stay–the three liberals, plus Justice Gorsuch. Press coverage of the Court’s order was often misleading. CNN’s, for example:
The Supreme Court on Friday turned down a request from the Biden administration to enforce parts of a new federal rule meant to protect LGBTQ+ and pregnant students from discrimination in 10 states where the rule was put on hold by federal judges.
Protecting trans students from discrimination means forcing all schools to allow boys pretending to be girls to shower with the girls.
The court announced its decision in an unsigned order that drew a partial dissent from the court’s three liberals and conservative Justice Neil Gorsuch.
Note that CNN doesn’t describe the grounds for the dissent. More on this in a moment.
The sweeping rule issued in April clarified that Title IX’s ban on “sex” discrimination in schools covers discrimination based on gender identity, sexual orientation and “pregnancy or related conditions.”
The Biden administration’s rule didn’t “clarify” anything, it illegally sought to implement a policy change that it desired, but that was at odds with the statute the rule supposedly implemented.
Courts apply several factors in evaluating any motion for a temporary injunction. The most important of those factors is the plaintiff’s likelihood of ultimately succeeding on the merits. Here, a series of courts have found that the plaintiff states and others are likely to succeed on their claim that the Biden administration’s new rule is illegal.
What is actually noteworthy about the Supreme Court’s order, but which few seem to have pointed out, is that all nine justices agreed that the principal elements of the Biden rule, those relating to sexual orientation and gender identity, are likely to be found illegal, so that the injunctions entered below were proper. The dissent’s complaint was that the injunctions covered all elements of the new rule, not just the sexual orientation and gender identity elements that, frankly, are obviously illegal under Title IX. The majority described the disagreement:
Importantly, all 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. But the Government argues (and the dissent agrees) that those provisions should be severed and that the other provisions of the new rule should still be permitted to take effect in the interim period while the Government’s appeals of the preliminary injunctions are pending in the Courts of Appeals. The lower courts concluded otherwise because the new definition of sex discrimination is intertwined with and affects many other provisions of the new rule. Those courts therefore concluded, at least at this preliminary stage, that the allegedly unlawful provisions are not readily severable from the remaining provisions.
In short, the federal courts have roundly and unanimously rejected the Biden Administration’s effort to use extralegal means to implement the LGBTQ+ agenda. This is a good reminder that, while the Democrats constantly charge that Donald Trump is an authoritarian and potential dictator, it is actually the Biden Administration that repeatedly uses illegal executive orders to try to circumvent our Constitution and laws.
