Six district courts and two courts of appeals have ruled in favor of the various plaintiff States that have challenged the Biden administration’s new Title IX rule. As Tennessee sums it up in its just-filed opposition to the Biden administration’s application for a supposed “partial” stay of the preliminary injunction it obtained, the new Title IX rule would threaten to deprive schools of federal funding if they do not
- let males into female restrooms
- let males shower and undress in female locker rooms
- let males box and wrestle females in P.E. class
- let males share a room with females on overnight trips
- punish students and teachers who refuse to use someone’s “preferred pronouns”
- punish students and teachers who express “offensive” views on same-sex marriage, abortion, gender identity, or other controversial topics.
In order to try to sneak a big victory out of its many defeats, the Biden administration is asking the Supreme Court (both in the Tennessee case and in the other cases) to stay the injunctions insofar as they go beyond the two provisions that it contends are the source of the States’ injuries. It claims that the courts below ignored “the fundamental principle that equitable relief must be tailored to match the plaintiffs’ injuries and legal claims.”
But, as Tennessee argues in response, the courts complied with that principle and carefully exercised their discretion:
In rejecting a partial stay, the courts below parsed the rule’s many interlocking provisions to explain why the central legal flaws flowed throughout. (Even that went above and beyond, since the government never made its new severability arguments in the district court. App.7a-8a.) The courts likewise found that the harms and equities strongly favor enjoining the entire rule, given the evidence about how disastrous partial compliance would be. Balancing all this, the courts declined to red-pencil hundreds of pages of agency work and hurl schools into a scramble that would compound their compliance costs and create widespread confusion. That was an exercise of discretion, not an abuse.
Tennessee exposes the Biden administration’s game:
By contrast, the government’s application for a partial stay seeks a “‘merits preview’” from this Court to stem the tide of adverse decisions. Labrador, 144 S.Ct. at 931 (Kavanaugh, J., concurring). Granting the government’s application, it understands, would “hamper percolation” by making the lower courts feel less free to resolve these cases independently. Id. at 934. Worse, the government’s proposed “partial stay” artificially conceals how extending Bostock to Title IX would explode longstanding policies. The government is arguing elsewhere that, because Bostock governs Title IX, schools cannot bar transgender students from using bathrooms or playing sports of the opposite sex—under Title IX itself, regardless of any regulations. The government wants this Court to endorse that statutory argument by agreeing that the rule’s “inclusion of gender-identity discrimination is compelled by … Bostock.” U.S.-Br.5. The fallout from that endorsement would hardly be “partial.” Labrador is no license to slice and dice cases in the hope of eliciting a rushed resolution of critical legal questions without full awareness of the consequences.
The Court should deny the Biden administration’s applications.