Christian schools association intervenes in suit against U.S. Department of Education

The nation’s largest Protestant association of Christian schools is joining forces with Tennessee and 19 other Republican states to try to block a Biden administration executive order that seeks to protect LGBTQ students in public schools from discrimination.

The Association of Christian Schools International, whose members include 2,000 schools and 60 colleges across the country, is being allowed to intervene in a lawsuit filed in U.S. District Court in Knoxville by attorneys general in Tennessee and 19 Republican states against the U.S. Department of Education.

The lawsuit seeks to block the department from enacting rules that would prohibit schools that receive federal funding from discriminating against students based on sexual orientation and gender identity.

The case is rooted in a Biden executive order that came after a June 2020 landmark decision by the U.S. Supreme Court that expanded the legal definition of sex discrimination to include sexual orientation and gender identity in employment situations.

Citing the high court’s decision, the Biden administrated directed federal agencies to enact rules that specifically prohibited sex discrimination based on sexual orientation and gender identity. The education department, in turn, issued “guidance documents,” prohibiting such discrimination and promising enforcement action against violators, including the loss of federal funding for schools.

Former Tennessee Attorney General Herbert Slatery III and his fellow Republican attorneys general in states that already had laws on the books that appeared to violate that guidance, including statutes that bar schools from allowing transgender youth to participate in girls’ sports and bar schools from allowing transgender youth from using restrooms that align with their identity, cried foul.

They argued in the lawsuit that the education department acted unilaterally without allowing states a chance to weigh in on the issue and that the Biden administration was trying to make an end run around state laws and the U.S. Congress’ authority to enact federal laws.

The Association of Christian Schools International bars transgender females from participation in female athletics at all of its schools and colleges. The association is arguing in its intervenor litigation that transgender females are bigger, stronger and tougher than biological females and the association’s female athletes will be unfairly disadvantaged if forced to compete against public school teams that include transgender females.

‘Uneven playing field’

“Fifty years ago, Title IX of the Education Amendments paved the way for these athletes by ensuring that girls and women had the same opportunities to compete in interscholastic athletics as boys and men,” the association litigation states.

“But the U.S. Department of Education will curtail these gains — and reduce the advantages of sports for girls — through its unlawful re-interpretation of Title IX to permit boys who are biologically male to compete in girls’ athletic competitions if they claim a female gender identity,” the litigation continues. “In doing so, the government puts girls at a competitive disadvantage, increases their risk of injury, and creates an unfair playing field that deprives girls of the inherent benefits of athletics.”

In the litigation, the association argues there are “physiological differences between the biological sexes” that create “physiological advantages” for biologically male athletes.

“No amount of testosterone suppression can eliminate male physiological advantages relevant to performance and safety,” the litigation states.

“Permitting males to compete in girls’ or women’s athletic events doesn’t make victory for girls and women more difficult; it makes victory over comparably talented and trained male athletes all but impossible for girls and women in most athletic competitions, because of inherent and biologically dictated differences between the sexes,” the intervenor lawsuit continues.

“For female athletes who train hard to be the best that they can be, the situation is neither fair nor safe,” the litigation states. “(The education department’s new rules) create an uneven playing field for ACSI’s member schools’ female athletic teams by requiring them to compete against other public schools’ female athletic teams that include biological males.”

U.S. District Judge Charles Atchley Jr., earlier this year sided with the Republican attorneys general in round one of this legal battle by issuing an injunction that temporarily blocks enforcement of the education department’s new rules.

Earlier this week, Atchley issued an order allowing ASCI to join the litigation. No trial date has been set.