In blocking a Biden administration move that would have facilitated the use by transgender workers and students to use school bathrooms and join athletic teams that correspond with their chosen genders, a federal judge has successfully checked ongoing attempts from the left to sidestep the legislative process, according to Giancarlo Canaparo and Sarah Parshall Perry, writing for the Daily Signal.
The pivotal ruling was issued by Judge Charles Atchley, Jr. of the Eastern District of Tennessee in response to a lawsuit brought by a group consisting of 20 Republican attorneys general from states across the country, in opposition to the Biden Education Department’s latest Title IX guidance.
Those attorneys general contended that the guidance was in conflict with state laws and stood in the way of their ability to enforce statutes banning transgender bathroom use in public schools.
“As it currently stands, plaintiffs must choose between the threat of legal consequences – enforcement action, civil penalties, and the withholding of federal funding – or altering their state laws to ensure compliance with the guidance and avoid such adverse action,” Atchley wrote in his opinion, as Politico noted.
In addition, the plaintiffs argued that the defendants in the case wrongly used to justify the guidance the U.S. Supreme Court’s ruling in the case of Bostock v. Clayton County, which held that workplace sex discrimination prohibited by Title VII of the 1964 Civil Rights Act rightly extends to gender identify and sexual orientation.
However, the high court explicitly declared in that ruling that it was not weighing in on questions regarding “sex-segregated bathrooms, locker rooms, and dress codes, saying that the only issue before the panel was “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex’” in contravention of the law.
Despite that language, however, the Biden administration swooped into power in 2021 and quickly started using Bostock to expand its reasoning to encompass restrooms, locker rooms, and the like.
As Canaparo and Perry point out, the “aggressive” interpretation of Bostock to suit ideological goals, while certainly problematic, was not the only issue posed by the Education Department’s conduct, in that effecting these changes through agency guidance, officials essentially circumvented the Administrative Procedure Act and avoided public notice and comment requirements that would normally apply.
Though liberals have decried Atchley’s decision as a failure to protect transgender students from discrimination, Canaparo and Perry pose an apt rhetorical question and provide a succinct reply. “So, how to you solve a problem like a rogue agency? Ideally, you pick a president who won’t tolerate bad administrative behavior. But failing that, you find a judge…who will hold agencies to the law.”