State of Kansas v. U.S. Department of Education

DENVER – Women’s groups, female athletes, scholars, 23 states, and many others have filed friend-of-the-court briefs asking the U.S. Court of Appeals for the 10th Circuit to halt the Biden-Harris administration’s unlawful attempt to redefine the word “sex” to include “gender identity” in Title IX, a federal law designed to create equal opportunities for women in education and athletics.

In the case State of Kansas v. U.S. Department of Education, Alliance Defending Freedom attorneys represent students and female athletes affected by the new rule. They joined with Kansas Attorney General Kris Kobach; the attorneys general from Alaska, Utah, and Wyoming; and Southeastern Legal Foundation, representing Moms for Liberty and Young America’s Foundation, to file the lawsuit in May.

“The Biden-Harris administration is attempting to rewrite Title IX through regulation. They seek to force young girls to share hotel rooms with boys who identify as females on overnight field trips and to change in front of men in locker rooms, threatening loss of federal funding if school districts put children’s best interests first. These actions are unlawful and unconstitutional, which is why the district court blocked the administration’s efforts. We are now asking the 10th Circuit to affirm the district court’s decision, protect Title IX, and ensure young women and girls continue to enjoy fairness and privacy in education,” Kobach said.

“The Biden-Harris administration’s radical redefinition of sex turns back the clock on equal opportunity for women, undermines fairness, and threatens student safety and privacy,” said ADF Vice President of Litigation Strategy and Center for Conscience Initiatives Jonathan Scruggs. “It also means girls will be forced to undress in locker rooms and share hotel rooms with boys on overnight school trips, teachers and students will have to refrain from speaking truthfully about biological sex, and girls will lose their right to fair competition in sports. Female athletes, students, and advocates across the country are right to stand against the administration’s adoption of extreme gender ideology, which would have devastating consequences for so many.”

In July, a federal district court in Kansas issued an injunction that halts the administration’s illegal attempt to rewrite Title IX while the lawsuit continues. The injunction covers not only the states of Kansas, Alaska, Utah, and Wyoming but also every school across the country attended by plaintiff student Katie Rowland, the members of Female Athletes United, the members of Young America’s Foundation, and the minor children of the members of Moms for Liberty.

“Title IX does not provide ‘clear notice’ that it extends to sexual-orientation or gender-identity discrimination. The statute’s text, structure, and aims show that it bars discrimination based on biological sex,” the brief led by the state of Mississippi and joined by 22 other states explains. “Nearly 30 years after Title IX’s enactment, the Department of Education declared: ‘Title IX does not prohibit discrimination on the basis of sexual orientation.’ Just a few years ago, the Department reaffirmed that ‘Title IX’s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity.’”

“Pursuant to this novel rewriting of Title IX, the Department demands that schools allow males to use women’s locker rooms and (seemingly) requires that men ‘identifying’ as women be permitted to compete in women’s sports. It promulgated these demands through a Final Rule that is both arbitrary and contrary to law,” the brief filed by the Independent Women’s Law Center, Women’s Declaration International USA, and Concerned Women for America states. “As University of Pennsylvania swimmer Paula Scanlan experienced, stripping nude and showering before a male eighteen times per week caused her—as a woman—tangible, sex-based harm. Title IX cannot plausibly be interpreted to require that.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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Friend-of-the-court briefs filed with U.S. Court of Appeals for the 10th Circuit

• Advancing AFA Action, et al
• America First Legal Foundation
• America’s Future, Public Advocate of the United States, U.S. Constitutional Rights Legal Defense Fund, Fitzgerald Griffin Foundation, LONANG Institute, Restoring Liberty Action Committee, and Conservative Legal Defense and Education Fund
• American Civil Rights Project
• Billy Burleigh, KathyGrace Duncan, Laura Perry Smalts, Jane Smith, and The Manhattan Institute
• Brent Ellis, President of Spring Arbor University
• Center for Religion, Culture, and Democracy and 30 scholars
• Child & Parental Rights Campaign
• Defense of Freedom Institute for Policy Studies
• Dr. Stephen Cranney
• Foundation for Moral Law
• Independent Women's Law Center, Women's Declaration International USA, Concerned Women for America
• Jane Doe
• Physiologists
• Professor Gerard Bradley
• States of Mississippi, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, and West Virginia
• Women's Liberation Front