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Public school athlete Cate Ford.

Federal court: Biden administration exceeded authority in redefining ‘sex’ by executive fiat

Court temporarily blocks administration’s reinterpretation of federal law that would force female athletes to compete against males in 20 states

Saturday, Jul 16, 2022

KNOXVILLE, Tenn. – A federal district court issued an order late Friday that temporarily blocks, in 20 states, Biden administration guidance documents that illegitimately reinterpret federal law to allow, among other things, males to participate in women’s sports. The court concluded that the guidance is based, in part, on a flawed interpretation of Bostock v. Clayton County, a recent U.S. Supreme Court ruling about employment discrimination.

Twenty state attorneys general, led by the state of Tennessee, requested the preliminary injunction order in their lawsuit challenging the guidance documents, issued by the U.S. Department of Education and the U.S. Equal Employment Opportunity Commission. One document interprets Title IX of the Civil Rights Act, which prohibits “discrimination on the basis of sex,” to bar discrimination based on gender identity and sexual orientation. Among other things, this would require that schools subject to Title IX allow males who identify as female to participate on female athletic teams and use female-designated showers and locker rooms.

“Girls involved in sports deserve the opportunity to compete on a safe and fair playing field against other female athletes. The court was right to find that the Biden administration exceeded its authority in issuing orders that jeopardize fair play,” said ADF Senior Counsel Jonathan Scruggs, who represents an association of Christian schools and three female athletes seeking to intervene in the lawsuit, The State of Tennessee v. U.S. Department of Education. “The Biden administration’s radical push to redefine sex in federal law—and without the required public comment period—threatens to erase women’s sports and eliminate the opportunities for women that Title IX was intended to protect. We are pleased that female athletes will be protected in 20 states while this lawsuit moves forward.”

“Both the Department and EEOC maintain that their respective guidance documents are required by the Bostock decision. However, Defendants ignore the limited reach of Bostock,” the U.S. District Court for the Eastern District of Tennessee at Knoxville wrote in its opinion and order. “The Bostock decision only addressed sex discrimination under Title VII; the Supreme Court expressly declined to ‘prejudge’ how its holding would apply to ‘other federal or state laws that prohibit sex discrimination’ such as Title IX. Similarly, the Supreme Court explicitly refused to decide whether ‘sex-segregated bathrooms, locker rooms, and dress codes’ violate Title VII. Bostock does not require Defendants’ interpretations of Title VII and IX. Instead, Defendants fail to cabin themselves to Bostock’s holding.” [citations omitted]

In October of last year, Alliance Defending Freedom attorneys representing the Association of Christian Schools International and three female athletes in Arkansas filed a motion to intervene, still pending before the court, in the case. Scruggs argued that motion before the court in November.

ACSI’s schools have approximately 500,000 students throughout the country. The ACSI schools compete against public schools that receive federal financial assistance and are required to adhere to the new federal mandate. This places Christian schools and their female athletes at a disadvantage because the public schools they compete against in athletic events would be required by the Biden administration to permit males to compete on female sports teams. The three female athletes ADF attorneys represent are Arkansas public school students Anna Scarborough, Cate Ford, and Amelia Ford.

Andrew Fox, one of more than 4,400 attorneys in the ADF Attorney Network, is serving as local counsel for ACSI and the female athletes.

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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