Today, in U.S. District Court for the Eastern District of Kentucky, Judge Danny Reeves vacated the Biden Title IX rule in its entirety in an order granting summary judgment to the plaintiff states (Tennessee et al) and denying summary judgment to the Department of Education.

If this ruling stands (which is likely), the incoming Trump administration will no longer need to go through the rulemaking process to rewrite the Biden rule and can spend that time on its other goals. The 2020 Title IX rule issued under the previous Trump administration—along with all its due process protections for accused students, faculty members, and school staff—will again be in effect and enforceable nationwide.

In brief, Judge Reeves’ rationale was as follows.

• Contrary to the plain language of Title IX, the Department exceeded its authority by attempting to rewrite sex into “gender identity.” The Department also radically misapplied the U.S. Supreme Court’s decision in Bostock v. Clayton County which forbade the termination of employees solely on the basis of gender identity but explicitly limited the decision to employment actions under Title VII.
• The Biden Title IX rule violates the Constitution on First Amendment grounds by requiring schools to “compel affirmation of a belief”—in this case, the belief of one’s gender identity.
• In its abandonment of the definition for sexual harassment set forth in Davis v. Monroe County Board of Education, the Biden administration’s final rule adopted a new definition of harassment that is both vague and overbroad. Under this new definition, alleged conduct is harassment if it is “subjectively and objectively” (instead of just objectively) determined to “limit” (instead of deny) a complainant’s access to educational programs or activities.
• The Biden Title IX rule is arbitrary and capricious, ignoring “glaring inconsistencies” created by adopting “gender identity.” For example, as we see in fraternities and sororities, living facilities, and so forth, Title IX allows sex segregation if the harm is minimal (“de minimis”). The Biden administration, however, positioned itself as though sex-separate facilities, such as showers and locker rooms, inflict more than de minimis harm.

Notably absent in the opinion are concerns for due process and jurisdiction that the Biden final rule introduced into Title IX grievance procedures, such as:

• A return to the single-investigator model in which one person is both the investigator and decision-maker
• Denying accused students and faculty members full access to the evidence against them, including evidence schools improperly deem irrelevant
• The expansion of schools’ obligation to investigate misconduct regardless of whether it occurs outside educational programs or activities, in another state, or even another country—indeed, anywhere.

These concerns are moot, however, because Judge Reeves struck down the Biden rule in its entirety. His rationale deserves to be quoted at length:

Having determined that the challenged portions of the Final Rule are invalid, the Court considers the appropriate remedy. While the Department argues in favor of severance, the Court remains persuaded that the three challenged provisions fatally taint the entire rule. As the Court has explained, the definition of discrimination “on the basis of sex” lies at the heart of Title IX and permeates virtually every provision of the law.

While not directly challenged in this proceeding, the Final Rule brings new requirements for handling grievances, training, recordkeeping, and processing complaints. But these regulations refer to and incorporate provisions the Court deems invalid, which necessitates jettisoning these regulations as well.

It simply is not proper for the Court to rewrite the regulations by excising the offending material, particularly when rulemaking is the exclusive duty of the Executive Branch. Thus, the undersigned concludes that the entire Final Rule and corresponding regulations are invalid and must be set aside.

The Biden administration can appeal and attempt to further defend the regs on appeal, but this is unlikely given that a new presidential administration will be taking over in less than two weeks. It also raises a question as to the futility of the attempt when considering the “bigger picture”: the ever-increasing likelihood that we have reached the upper limit and imminent decline of “progressive” advocacy regarding sex and gender, if not “progressivism” (as opposed to its more meritorious cousin, liberalism) in general. There are numerous indicators of this.

The bloodthirst and fanaticism of ideologies opposed to due process on the basis of sex—MeToo, extreme feminism, and their various offshoots—are increasingly falling out of favor, meeting harsher and more public opposition, and finding defeat (one way or another) in court. Since 2011, young men have filed nearly nine hundred lawsuits alleging their schools violated their rights in sexual misconduct investigations. Those lawsuits paved the way for favorable circuit court decisions and the 2020 Title IX regulations which increased due process protections for accused students and have withstood all five legal challenges in federal court. Various states have also enacted laws friendly to due process.

Tacitly acknowledging that gender identity matters are deeply unpopular with the American public, the Biden administration has itself partially backtracked on gender identity in Title IX rulemaking by delaying its separate “trans students in athletics” final rule until after the election and then abandoning it entirely after losing the election. While Bostock seemed to bode well for gender identity advocates seeking to rapidly expand their influence, they have more recently been stacking defeat after defeat in federal court and prompting harsh reminders that they cannot take a mile from the inch Bostock gave them.

Relatedly, companies and educational institutions are scaling back on “DEI,” states are passing laws banning DEI in government institutions, and Trump—who is more of a reflection of the shifting winds of public opinion than its cause—has just been re-elected. With the Supreme Court overturning Chevron last year, further “progressive” Title IX regulations will only be harder to defend in court. Lastly, with a majority-conservative Supreme Court and the likelihood of Justice Thomas retiring in the next couple of years, SCOTUS will be conservative for at least the next ten years…and possibly much longer.

When the 2020 regulations went into effect, it was a victory for due process. But it wasn’t over; the ground gained had to be defended from inevitable attempts to retake it. Regulations are sometimes like sandcastles constructed with great care only to be swept away with the incoming tide of a new administration. But what we are seeing is more than a shift in administrations and public policy. As Bob Dylan sang sixty years ago, “The Times, They Are a-Changin’.”