Primary Source: Legislative and Litigation Updates from California Justice Center 3/1/25 - 3/7/25
The conflict between state and federal laws is playing out in the courts and through federal administrative process. It’s an exciting time.
1. OCR Complaint Filed Against California Department of Education, Los Angeles Unified, San Francisco Unified, and Capistrano Unified
Issues: California gender law and policy conflicts with Title IX.
California Justice Center and Defense of Freedom Institute filed a Title IX complaint with the United States Department of Education alleging that California’s law and policy conflating gender identity with sex undermines the protections for women and girls set forth in Title IX.
Parents of fourth graders in Capistrano Unified received a science camp interest form stating that students would be assigned cabins and bathroom facilities based on “gender identity” rather than sex. The form also explained that the school is prohibited from notifying parents about whether their child will share sleeping spaces with individuals of the opposite sex, and does not allow families to opt out.
CDE, LAUSD, and SFUSD also maintain rules and policies requiring K-12 students to share their sex-separated intimate spaces at school with individuals on the basis of their asserted “gender identity” rather than sex.
California’s conflation of sex and gender identity aligns with Biden’s 2024 Title IX Rule, which federal district courts and courts of appeals across the country blocked on the basis that it subverted the original purpose of Title IX—to guarantee equal opportunities to women and girls in education—by requiring schools to permit males who identify as female to share bathrooms, locker rooms, and other sex-separated private facilities with women and girls. (See here for more).
On August 16, 2024, a unanimous Supreme Court agreed that a preliminary injunction blocking the “gender identity” provisions of the 2024 Rule was an appropriate measure.
The Eastern District of Kentucky vacated the 2024 Rule in full because, among other unlawful aspects of the rule, the regulations misinterpreted the word “sex” in Title IX to apply to “gender identity” and overruled Title IX’s explicit recognition that schools may separate certain facilities and programs on the basis of sex in the interest of safety, privacy, and equal opportunity.
The U.S. District Court for the Northern District of Texas also vacated the 2024 Rule on many of the same grounds, including that “expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head” and the 2024 Rule’s standard forcing schools to allow males to access female bathrooms and other intimate spaces “is arbitrary in the truest sense of the word.”
The USDOE opened investigations in response to our complaint. I will keep you updated on developments.
2. Assembly Bill 844 (Essayli)
Issue: Amend Ed Code 221.5(f) to revert back to sex instead of gender identity
Update: Bill introduced
Continuing the theme of conflict between state and federal law, Assemblyman Bill Essayli introduced AB 844 last month. This bill would amend Education Code section 221.5(f) to revert back to the concept of biological sex instead of gender identity, in compliance with Title IX.
If passed, this bill would enable California schools to comply with Title IX, and restore dignity and privacy to girls and women in intimate spaces.
My prediction: the supermajority Democrat state legislature won’t even give this bill a hearing in committee, despite Gavin Newsom agreeing with Charlie Kirk that allowing males to compete with females in athletics is “deeply unfair.”
3. Department of State v. Aids Vaccine Advocacy Coalition (USSC Case No. 24A831)
Issue: Whether the Supreme Court should vacate the District of Columbia district court's order requiring the executive branch to pay nearly $2 billion to nonprofits and businesses that receive federal foreign-assistance funding for reimbursements of contracts and grants for work completed before Feb. 13, 2025.
Update: SCOTUS ruling with scathing dissent
Aids Vaccine Advocacy Coalition, Hebrew Immigrant Aid Society (“HIAS”), Global Health Council, American Bar Association and others sued the Trump administration to enjoin Trump’s funding freeze under Executive Order “Reevaluating and Realigning United States Foreign Aid,” Exec. Order. No. 14169.
In early February, the United States District Court for the District of Columbia entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds.
On February 25, the District Court ordered the Government to “pay all invoices and letter of credit drawdown requests on all contracts” for pre-TRO work completed. The Government filed an application to vacate the District Court’s February 25 order and asked for an administrative stay.
The Government contended it would suffer irreparable harm if the District Court’s order is not stayed. The Government represented that it would probably be unable to recover much of the money after it is paid because it would be quickly spent by the recipients or disbursed to third parties.
SCOTUS denied the application and directed the District Court to clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order. Justice Alito wrote a scathing dissent, in which Justice Gorsuch, Justice Thomas, and Justice Kavanaugh joined.
The dissent focused on sovereign immunity, which bars a suit by private parties seeking to impose a liability which must be paid from public funds in the treasury.
Sovereign immunity may be waived, but in the case of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.
A federal court may not issue an equitable remedy that is “more burdensome to the defendant than necessary to” redress the plaintiff ’s injuries.
According to the dissent, any harm resulting from the failure to pay amounts that the law requires would have been diminished, if not eliminated, if the Court of Appeals had promptly decided the merits of the Government’s appeal, which it should not have dismissed. If SCOTUS sent this case back to the Court of Appeals, it could still render a prompt decision. If it decided in favor of respondents, the Government would be obligated to pay all the money that is due, and respondents would have suffered only a short delay in the receipt of payments. And if the Government prevailed on its sovereign-immunity argument, neither respondents nor any of the recipients of their services would have suffered any unlawful consequences.
“Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.”
The status report and supplemental authority filings following the SCOTUS order are messy and interesting. It is notable that NO ruling on the merits has been issued yet in this case.
