Rarely does a single sentence so completely crystalize a debate as the first line of the court order in Tennessee v. Cardona. The case involves the attempts by the Biden Administration’s Department of Education to rewrite Title IX’s protections of women in education and their access to competitive sports. The single sentence? “There are two sexes: male and female.” That one sentence is the foundation of Judge Reeves’ injunction against the United States Department of Education’s attempt to ignore biology, rewrite law, and set back women’s rights by decades.
Title IX
The transgender movement boils down to a question of subjective vs objective. If someone believes they are not the “gender” they were born, is the problem with their body or their mind? This is the fundamental question, and by extension, the fundamental issue which society is being asked to decide. In the middle of this, the Biden administration has created its own moral quandary revolving around a question of subjective vs objective. Does a law mean what the language objectively says or does it mean what a person subjectively wants it to mean? That question is what the case State of Tennessee, et at., v. Miguel Cardona, et al., is all about.
This case concerns an attempt by the executive branch to dramatically alter the purpose and meaning of Title IX through rulemaking. But six states, an association of Christian educators, and one fifteen-year-old girl object. As they correctly argue, the new rule contravenes the plain text of Title IX by redefining “sex” to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking. If the new rule is allowed to take effect on August 1, 2024, all plaintiffs will suffer immediate and irreparable harm.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
This case revolves around Title IX of the Education Amendments Act, signed into law by then President Richard Nixon on June 23, 1972. This law states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,
20 USC §1681
While the law does provide some exceptions, for the most part, any education program or activity receiving federal financial assistance is barred from excluding people from participation in, or the benefits of, an education program or activity based on their sex.
In 1974, Congress passed an amendment to Title IX introduced by Senator Jacob Javits of New York, clarifying its application to intercollegiate athletics. … The amendment directed the Department of Health, Education, and Welfare (“HEW”), the Department of Education’s (“the Department”) predecessor, to issue a regulation that contained “with respect to intercollegiate athletic activities, reasonable provisions considering the nature of particular sports.” Notably, this amendment further cemented that Congress intended Title IX to cover athletics at all levels for both males and females at schools receiving federal funding.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Fundamental Truths
As I noted at the beginning, Judge Reeves opened this memorandum with a fundamental truth:
“There are two sexes: male and female.”
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
This sentence had an interesting footnote.
The defendants made this concession during oral arguments on the plaintiffs’ motion for injunctive relief. The parties have agreed to little else.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Even Secretary Cardona and the U.S. Dept. of Education agreed that there are only two sexes. Yet they continued to promote the idea that sex somehow includes “gender identity”. Judge Reeves later described some of the discriminatory impact of this view.
As a practical note, ignoring fundamental biological truths between the two sexes deprives women and girls of meaningful access to educational facilities. In intimate spaces like bathrooms and locker rooms, students retain “a significant privacy interest in their unclothed bodies.” … This necessarily includes “the right to shield one’s body from exposure to viewing by the opposite sex.” ... After all, in the words of former Justice Ruth Bader Ginsburg, the integration of an all-male military institution “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” United States v. Virginia, … This interest in protecting bodily privacy is sex-specific because of—not in spite of—the different male and female anatomies. …
But at a minimum, students of both sexes would experience violations of their bodily privacy by students of a different sex if the Final Rule became effective. …
Nonetheless, despite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity. This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
First Amendment
While the question of personal spaces was discussed at length in this memorandum, a significant First Amendment issue was also raised.
The Final Rule also has serious First Amendment implications. The rule includes a new definition of sexual harassment which may require educators to use pronouns consistent with a student’s purported gender identity rather than their biological sex. Based on the “pervasive” nature of pronoun usage in everyday life, educators likely would be required to use students’ preferred pronouns regardless of whether doing so conflicts with the educator’s religious or moral beliefs. A rule that compels speech and engages in such viewpoint discrimination is impermissible.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Judge Reeves referred to a Sixth Circuit case, Meriwether v. Hartop, to support his decision.
The Sixth Circuit’s opinion expressly recognized that “titles and pronouns carry a message,” and compelling someone to use preferred pronouns communicates the message that “[p]eople can have a gender identity inconsistent with their sex at birth.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Which led Judge Reeves to conclude.
It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto. So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Federal Funding
Speaking of federal funding, it should not be a surprise that the leverage the federal government wields behind this rule is money.
The States next cite the federal funding they stand to lose if they do not comply with the Final Rule when it goes into effect on August 1. … The States presented the testimony of David Thurman, State Budget Director for the Tennessee Department of Finance and Administration (F&A). Thurman explained how Tennessee’s yearly budget is developed, including a budget for the Department of Education. Thurman reported that the education budget for fiscal year 2023 was approximately 8 billion dollars, with approximately 1.8 billion dollars comprising federal funds, and approximately 1.5 billion dollars coming from the United States Department of Education.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
As Alexis de Tocqueville once said:
The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money
Alexis De Tocqueville
This regulation is simply the latest in a long train of examples of how Congress has discovered that it can bribe the public with their own money. I only wish Judge Reeves had gone into this in more depth. While Judge Reeves talks about the impact of the loss of such funding, no mention is given to the fact that Congress has no constitutional authority to spend money on education. Neither does the Constitution give the executive branch the authority to use tax money to intimidate states into following their political agenda. Once again we see the bribe offered by Congress being used to manipulate and intimidate the states into complying with the political wishes of the federal government.
Conclusion
Judge Reeves comes to several conclusions, none of which are supportive of the actions of the U.S. Department of Education. First, Judge Reeves castigates the DOE for ignoring the concerns of parents, teachers, and students, along with their basic privacy and safety interests.
It is an inescapable conclusion based on the foregoing discussion that the Department has effectively ignored the concerns of parents, teachers, and students who believe that the Final Rule endangers basic privacy and safety interests. … Rather than address the evidence provided by the plaintiff-States and others during the commenting period, the Department throws its figurative hands in the air and says, “too bad.” But as the United States Court of Appeals for the Fifth Circuit has underscored, “bare acknowledgement” of possible issues a rule will create “is no substitute for reasoned consideration,” especially when the regulated subject is one of extraordinary consequence. … The Department has not identified significant evidence indicating that its motivations here are rooted more in sound considerations accounting for the serious privacy and safety interests than in the political preferences of an outcome-oriented rule. Based on this analysis, the Final Rule is arbitrary and capricious.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Next Judge Reeves points out how the DOE has far exceeded its statutory powers.
Title IX of the Education Amendments of 1972 was intended to level the playing field between men and women in education. The statute tells us that no person shall be subjected to discrimination under any education program or activity receiving Federal financial assistance “on the basis of sex.” … However, the Department of Education seeks to derail deeply rooted law with a Final Rule that is set to go into effect on August 1, 2024.
At bottom, the Department would turn Title IX on its head by redefining “sex” to include “gender identity.” But “sex” and “gender identity” do not mean the same thing. The Department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
Lastly, Judge Reeves points out that the rule making was arbitrary, capricious, and devoid of reasoning.
Additionally, the Department’s actions with respect to this rulemaking are arbitrary and capricious. The Department fails to provide a reasoned explanation for departing from its longstanding interpretations regarding the meaning of sex and provided virtually no answers to many of the difficult questions that arose during the public comment phase. Notably, the Department does not provide a sufficient explanation for leaving regulations in place that conflict with the new gender-identity mandate, nor does it meaningfully respond to commentors’ concerns regarding risks posed to student and faculty safety.
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
All of this leads Judge Reeves to his final order:
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
Tennessee v. Cardona 24-072-DCR Memorandum Opinion and Order
- The motions for a preliminary injunction/stay filed by Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia [Record No. 19] and Christian Educators Association International and A.C. … are GRANTED.
- The United States Department of Education and Miguel Cardona, Secretary of the U.S. Department of Education, along with their secretaries, directors, administrators, and employees, are ENJOINED and RESTRAINED from implementing, enacting, enforcing, or taking any action in any manner to enforce the Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33474 (Apr. 29, 2024), which is scheduled to take effect on August 1, 2024.
- This injunction is limited to the plaintiff-States of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia and extends to intervening plaintiffs Christian Educators Association International and A.C. in these six states.
The preliminary injunction is filed and the Department of Education is enjoined and restrained from putting their Final Rule into effect. Based on what I’ve read, this is a constitutionally sound decision.
While some may not be happy, the fact that the injunction is limited to the plaintiff-states actually comports with both legal standards and the Constitution. District judges issuing nationwide injunctions are the actual violation of their oath, since when Congress created these courts under Article III, they limited them to a specific region. Also, under our Constitution, courts do not make laws. Based on that and basic legal standards, their decisions are limited to the parties to the case, which is exactly what Judge Reeves has done.
It would not surprise me if the Biden Administration appeals this case. I wonder if the Circuit, and possibly Supreme, Courts will come to as constitutional a conclusion as Judge Reeves has.
