Other states led by Republican governors or attorneys general have succeeded in getting preliminary injunctions to block the new rules

Carleen Johnson
The Center Square

The fight over the Biden administration’s rule changes to Title IX, which will allow boys who identify as girls to compete in girls’ sports, has inspired a first-of-its-kind federal lawsuit in Washington state.

Other states led by Republican governors or attorneys general have succeeded in getting preliminary injunctions to block the new rules. In Washington, where Democrats are firmly in control, the challenge comes from a group of citizen activists.

The nonpartisan group, Washington Parents Network, is filing for a preliminary injunction against the Title IX rule change, called the Final Rule, and asking the court to order Superintendent of Public Instruction Chris Reykdal and Attorney General Bob Ferguson, as well as the Washington Interscholastic Athletic Association to comply with Title IX by prohibiting biological males from using girls’ bathrooms or locker rooms or participating in girls’ sports.

Title IX, passed by Congress in 1972, protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

“The Biden administration issued what is called the Final Rule in April,” said David Spring, executive director of Washington Parents Network.

He went on to say, “The Final Rule replaced biological sex with gender identity, meaning it takes away all rights that girls and women have had for 52 years now and allows transgender males to use the girls’ bathroom, locker rooms and to participate in girls’ sports.”

Spring said the rule goes well beyond that. 

“What it really does is it says if you disagree with the concept that one can change their gender or identify as another gender, you can be accused of sexual harassment and found guilty,” Spring said. “We’re really talking about a radical policy never seen in the United States before, and it will become the law if we don’t get an injunction.”

The new Final Rule is supposed to go into effect on Aug. 1. However, more than two dozen states already have injunctions in place blocking it and eight federal courts have all ruled against the Biden administration in recent weeks.

“Initially we are only filing for a preliminary injunction saying we want to maintain the status quo of original meaning of Title IX,” Spring noted. “If the judge does find in our favor and goes along with all the other federal judges, then we’re going to file a subsequent motion.”

That motion names Ferguson, Reykdal and WIAA for allegedly failing to comply with Title IX as required by federal law.

“We have an attorney general, a state superintendent and the WIAA and all three have been violating Title IX for the past seven years, in fact, they’ve been lying to people about Title IX for all that time,” Spring said.

The legal challenge alleges that the violations include allowing boys in the girls’ bathrooms and locker rooms, allowing transgender males to participate in girls’ sports, and violating people’s free speech rights.

Documents the group plans to file with the court include dozens of stories of parents sharing their children’s experiences and teachers who were forced to resign or retire early over objections to boys being allowed to participate in girls’ sports.

“Title IX itself is only three pages long, but the Biden Final Rule is 1,577 pages long,” Spring pointed out. “We’re talking about something you can’t even imagine how bad it is. It’s worse than your worst nightmare.”

According to the American Council on Education, the changes will shift how institutions address sexual harassment and assault allegations while expanding protections for LGBTQ+ and pregnant students.

Among the changes, the regulations eliminate the mandate for live hearings with cross-examination as part of campus disciplinary processes for resolving sexual assault. 

Spring told The Center Square that on Wednesday the Family Policy Institute of Washington signed onto their case as plaintiffs, bringing the total number of plaintiffs to roughly 70,000 Washington residents.

“There are so many parents whose children have been harmed by this in Washington,” Spring said,

“The court could deny our motion, and that would be a win for us, too,” said Spring. “Because they’ll have to come up with some sort of reason why they don’t want to enforce the law, and in that case, it sets up a conflict,” he said. “It would be a conflict between the 9th Circuit and all the other circuits.”

At that point, the U.S. Supreme Court will get involved, he said.

“The Supreme Court has already indicated they are likely to take this case up in October, because this is a national issue,” Spring said.

The plaintiffs are hoping the judge will grant an injunction right away with the 2024-25 school year, just weeks away.

“By federal rule, the defendants get 20 days to respond, meaning the Final Rule will take effect in Washington,” Spring said. “So we’ve asked the court for the injunction by Aug. 1, recognizing the lateness of all this.”

The Center Square reached out to Reykdal and Ferguson’s offices for comment.

“We are not able to provide a detailed comment on a motion that has not yet been filed and we have not yet analyzed,” Reykdal’s office said in an email. “At a high level, all students have the right to participate in extracurricular activities in alignment with their gender identity, and state law, rules and guidelines make clear that preventing an LGBTQ+ student from participating in activities sponsored by their school could be discriminatory.”

Ferguson’s office did not respond by the time of publication.

This report was first published by The Center Square.