UPDATED
‘Easier for challengers to succeed in court’
The Supreme Court recently overturned the Chevron deference, which gives states more power against federal authority and means the 26 Republican state attorneys general working to block President Joe Biden’s pro-transgender Title IX revisions will have a much easier time now, law professors say.
The 6-3 ruling in late June means federal agencies’ power to interpret laws has been ratcheted back, clearing the way for the dozens of states fighting Biden’s Title IX revise to gain additional traction.
The new “Biden Rule,” released in April, added gender identity to Title IX, thus allowing female-identifying men into women’s bathrooms and requiring others to address them with their preferred pronouns. It prompted a slew of lawsuits from the GOP-led states.
Currently, more than 670 institutions across 50 states are covered by temporary injunctions, Inside Higher Ed reported Thursday. With the Chevron doctrine gone, the prospects for these states is looking even better, several law professors told The College Fix in recent interviews.
“I do not believe that the Supreme Court’s overruling Chevron will change what the Biden administration does with regard to Title IX rules, or other rules,” Professor Erwin Chemerinsky of Berkeley Law told The College Fix. “But it will make it … easier for challengers to succeed in court.”
Professor John Banzhaf of George Washington University Law School echoed similar sentiments. He told The College Fix the feds relied on Chevron to redefine “sex.”
“To put the Chevron issue in a more general context, un-elected and often unknown agency heads have too often taken advantage of the Chevron doctrine to enact their own views and prejudices into law by taking words which are very clear…and giving them new meanings,” Banzhaf told The Fix via email.
“‘Sex’ is clearly only one such word,” Banzhaf said.
“Under Chevron, courts had to accept each new definition as it came along, even after a 180 degree change,” Banzhaf said. “Of special concern was when an agency re-defined a word in its statute to give it far more and wider jurisdiction; a jurisdiction and power Congress never intended the agency and its head to have.”
Banzhaf said the rules for “contrary-to-reality” beliefs are bent only when it relates to gender.
For instance, as Banzhaf explained, it is not expected that the public affirms an anorexic woman with contrary-to-reality beliefs that she is fat by telling her she is fat, or that the public affirms a boy with muscle dysmorphia by telling him that he is scrawny.
“Strangely, when there…are males with…XY chromosomes who have the [contrary-to-reality] belief that they are really female, both social pressure and the law often require that all others go along with that belief,” Banzhaf said.
Inside Higher Ed reported that presidential administrations will now have a harder time interfering with higher education from now on, too.
“The Biden administration’s new rules on Title IX, debt relief, gainful employment and more could all face greater judicial scrutiny in a post-Chevron environment,” the outlet reported.
“Future administrations likely won’t be rewriting regulations in the same way. Legislating via regulation” is no longer an option in the absence of Chevron, it added.
In real time, judges blocking the Title IX revisions “made quick work of Chevron deference,” Education Week reported.
When the Department of Education was reached for comment by The College Fix concerning how the overruling of the Chevron deference will affect Biden’s Title IX rewrite for schools and states, Jim Bradshaw of the press office responded with a link to a statement from White House Press Secretary Karine Jean-Pierre.
“While this decision undermines the ability of federal agencies to use their expertise as Congress intended to make government work for the people, the Biden-Harris Administration will not relent in our efforts to protect and serve every American,” Jean-Pierre wrote.
Editor’s note: This post has been amended to clarify opponents of the changes will have an easier time in the first sentence.
IMAGE: Steven Frame / Shutterstock
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