Supreme Court’s ‘Chevron Deference’ repeal weaponized against Biden’s interpretation of sex discrimination

On June 28, the U.S. Supreme Court overruled a 48-year-old precedent, Chevron U.S.A. v. Natural Resources Defense Council, in a 6-3 decision that made it easier to challenge rules and regulations issued by federal administrative agencies. The new ruling, Loper Bright Enterprises v. Raimondo, abolished the doctrine of “Chevron Deference,” under which federal courts were supposed to “defer” to administrative agencies’ interpretations of federal statutes on issues as to which Congress had not spoken clearly in the statutes. The new rule, under which the courts are freed of any such requirement and may freely disagree with agency interpretations, has been seized upon by numerous courts over the past few weeks in ruling against the Biden Administration’s new Title IX rules intended to protect LGBTQ people in educational institutions and for purposes of health care coverage subject to the Affordable Care Act (ACA) and the Medicare and Medicaid Acts.

Title IX of the Education Amendments of 1972 prohibits educational institutions that receive federal money from discriminating “on the basis of sex” in their educational programs. During the Obama Administration, following the lead of the Equal Employment Opportunity Commission, which ruled that employment discrimination because of sexual orientation or gender identity violated the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964, the U.S. Department of Education’s Office of Civil Rights (OCR) interpreted Title IX to ban such discrimination as well in 2016, sending a letter to all the nation’s school districts advising them of its interpretation. Similar interpretations were embraced by the agencies enforcing anti-discrimination rules in health care in 2016.

The Trump Administration countermanded these interpretations shortly after taking office in 2017. In 2020, the Supreme Court interpreted Title VII to ban discrimination because of “sexual orientation” or “transgender status” in the case of Bostock v. Clayton County, commenting that it was impossible to discriminate on these bases without discriminating on the basis of sex. The Trump Administration responded to this opinion by contending that it was not a precedent for Title IX or any other federal sex discrimination law, seeking to limit it to Title VII.

When Joseph Biden took office in 2021, he issued an executive order instructing federal agencies to consider applying the reasoning of the Bostock decision to their statutes, including Title IX, where “appropriate.” OCR quickly issued a new interpretative memo along those lines, and in April of this year adopted a new Rule in compliance with the procedures specified under the Administrative Procedure Act (APA). Such rules have the force of law in federal courts.

In addition, the ACA provides that discrimination prohibited by Title IX is also prohibited by the ACA, which applies to health care providers and funders, who consequently may not discriminate “on the basis of sex.” The Department of Health and Human Services now takes the position in a rule issued in May 2024 that this also includes discrimination because of sexual orientation or gender identity. The Medicare and Medicaid systems have also barred sex discrimination and have adopted a Rule extending protection to LGBTQ people.

Many states whose anti-discrimination laws do not explicitly cover discrimination because of sexual orientation or gender identity have filed lawsuits seeking either to have the Biden Administration’s new Title IX rule or the new interpretation of Title IX for purposes of ACA invalidated, arguing that they rely on an incorrect interpretation of Title IX. Even before the Supreme Court’s Loper Bright decision, some conservative judges have refused to defer to OCR’s interpretation, as we previously reported in Gay City News. With the new decision abolishing Chevron deference, that trend has accelerated as federal courts have issued preliminary injunctions targeted at preventing federal agencies from enforcing Title IX or the ACA in cases alleging anti-LGBTQ discrimination.

On July 2, John W. Broomes, a Trump-appointed judge in the district court in Kansas, granted a preliminary injunction in a case brought by Kansas, Alaska, Utah, Wyoming, Young America’s Foundation of Female Athletes United (YAFFAU), and Moms for Liberty, which enjoins the federal government from enforcing the new rule. The injunction blocks application of the new Title IX rule to schools in those states, schools attended by members of YAFFAU, and schools attended by children of members of Moms of Liberty. The court gave these organizations a few weeks to supply a list of the schools that would be affected, many of which are in states other than the plaintiff states in this case.

Quoting the Supreme Court’s statement in Loper Bright that the court “need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous,” Judge Broomes wrote, “The court must exercise its ‘independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.’” He concluded that the OCR’s definition of discrimination “on the basis of sex” was “contrary to law,” embracing the Trump Administration’s critique of Bostock that limited that ruling to employment discrimination under Title VII of the Civil Rights Act. Furthermore, as a matter of “textualism,” he argued that when Title IX was adopted in 1972, “the term ‘sex’ was understood to mean biological distinctions between males and females,” so that would be the appropriate interpretation, finding further confirmation in various references in Title IX and longstanding regulations issued under that statute suggesting that this was the intent of Congress and the understanding of administrators for half a century.

Judge Broomes found half a dozen other reasons to question OCR’s interpretation of Title IX. Finding that the definitional section permeated the entire 400+ page rule, he concluded it was appropriate to enjoin the entire Rule, not just the particular portions that the plaintiffs argued to be objectionable, dealing with transgender names and pronouns, hostile environment claims, restrooms and locker rooms, and the like.

On July 19, Judge Broomes issued a new decision denying a motion by the government to partially stay his preliminary injunction pending an appeal, and by Moms for Liberty seeking to expand the scope of the injunction. He stated that these motions would “significantly change the status quo of this matter” and the court lacked jurisdiction to grant the motions.

On July 3, Louis Guirola, Jr., who was appointed by President George W. Bush, granted a preliminary injunction against the new HHS and Medicare/Medicaid rules in a case brought by Tennessee, Mississippi, Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia and West Virginia. Judge Guirola also prominently cited the new Loper Bright decision in support of the court’s authority to ignore the agency interpretations of sex discrimination and instead to adopt an interpretation similar to Judge Broomes’ in find that he should issue a nationwide injunction against enforcement of the HHS May 2024 rule.

On July 3, Jeremy D. Kernodle, who was appointed by President Trump, issued a similar ruling and preliminary injunction against the HHS rule on behalf of the states of Texas and Montana, who had filed suit in the Eastern District of Texas. He wrote: “Here, federal agencies are attempting to impose a sweeping new social policy by manipulating and perverting the statutory text that constrains them. Texas and Montana seek a stay or preliminary injunction to prevent the irreparable harm that will undoubtedly follow. The Court grants the States’ request.” In the course of his opinion, he exclaims, contrary by decision by other federal court issued over the past few years, “nothing in these statutes authorizes HHS — or any federal official — to require healthcare providers to perform novel ‘gender-transition’ procedures or force States to subsidize them.”

Next to be heard from were two of the most blatantly anti-LGBTQ district judges in the United States, both in the Northern District of Texas: Matthew J. Kacsmaryk (appointed by Trump), in the Amarillo Division of the court, and Reed O’Connor (appointed by Bush), in the Fort Worth Division. On July 11, each of them issued an opinion granting a preliminary injunction. Kacsmaryk, ruling in a case brought by the state of Texas, blocked enforcement of the Title IX rule against two individual plaintiffs and the state of Texas, while O’Connor, ruling in a case brought by Carroll Independent School District, focused his preliminary injunction on blocking enforcement of particular provisions of the Title IX ruled against the plaintiff.

The flavor of these July 11 rulings can be found in their opening lines. Judge Kacsmaryk wrote, “The Final Rule inverts the text, history, and tradition of Title IX: the statute protects women in spaces historically reserved to men; the Final Rule inserts men into spaces reserved to women. Defendants invoke Bostock v. Clayton County to rationalize the Final Rule’s inversion of the statutory text but do not adequately explain why that Title VII employment case controls this Title IX educational case, which instead implicates women’s athletics, safety, and sex-specific facilities in a different setting: schools, colleges, and universities.”

Judge O’Connor wrote: “The Final Rule undermines fifty years of progress for women and girls made possible by Title IX. Worse still, the Final Rule endangers not only women and girls, but all students. Just like the subjective nature of ever-changing gender identity, the Department Education picks and chooses which ‘niche’ group to prioritize regardless of the consequences for everyone else and regardless of its authority. Functionally displacing Title IX’s understanding of ‘sex’ while refusing to define it, the Department of Education’s Final Rule has ‘no basis in reality.’ This cannot be.”

The U.S. Solicitor General, representing the federal government, has petitioned the Supreme Court to narrow the preliminary injunctions against the Title IX rule so that they would only apply to the handful of provisions that were directly attacked by the plaintiffs, rather than blocking the rule across the Board. The 400+ page rule covers numerous topics that were not specifically targeted by the plaintiffs in their arguments in support of the preliminary injunctions, and the Solicitor General’s petitions rely on action taken by the Supreme Court several months ago to narrow a preliminary injunction in an Idaho case concerning the state’s ban on gender affirming care for minors. The Supreme Court usually reacts quickly to such petitions when an imminent deadline looms — in this case, August 1, when the Title IX ruled is intended to go into effect.