Documents released by the U.S. Office of Special Counsel (OSC) indicate that officials within the Biden administration's Department of Education (ED) allegedly circumvented a federal court injunction. The injunction had restricted the department's enforcement of policies related to sexual orientation and gender identity (SOGI) under Title IX.
The OSC's findings, detailed in a June 9 letter to the White House, stated that the Department of Education "fully substantiated" a whistleblower's allegations. These allegations claimed the department's Office for Civil Rights (OCR) failed to comply with a preliminary injunction. The injunction, issued in July 2022 by the U.S. District Court for the Eastern District of Tennessee, blocked the department from implementing guidance that interpreted Title IX to cover SOGI. This guidance followed President Biden's 2021 executive order on preventing discrimination based on gender identity or sexual orientation.
The whistleblower, identified as a chief attorney in OCR's Kansas City office, asserted that the department continued to pursue claims involving gender identity, transgender status, and sexual orientation in states covered by the injunction. Investigators concluded that the department's approach did not constitute genuine compliance with the court order. According to the OSC report, OCR leadership created "a path for carrying out its preferred SOGI policies" in the plaintiff states, and regional offices were directed to act "in defiance" of the injunction.
<![CDATA[<figure><img src="/images/88JKApGBmXMF" alt="A protester draped in a transgender pride flag outside the Supreme Court building." title="A protester draped in a transgender pride flag outside the Supreme Court building."><figcaption>A protester draped in a transgender pride flag outside the Supreme Court building.</figcaption></figure>]]>Legal Challenge and Departmental Response
The original lawsuit challenging the guidance was brought by a coalition of states. While the dispute extended beyond female athletics, the inclusion of males identifying as female in girls' sports was a significant concern for the plaintiffs. Alliance Defending Freedom (ADF), which was involved in the Tennessee case, argued that the guidance would compel schools to allow transgender girls to compete on female athletic teams and use female-designated facilities.
Initially, the Education Department denied wrongdoing, asserting in a December 2024 report that it had not violated the injunction because it was not citing or relying on the challenged guidance documents. The department contended it could still investigate SOGI complaints if grounded in Title IX regulations, case law, and specific facts. However, a supplemental investigation by the OSC found "significant shortcomings" in the department's initial response, including failures to assess evidence, conduct interviews, and directly address whether OCR leadership had disregarded the injunction.
<![CDATA[<figure><img src="/images/B8TByd1vaxFh" alt="President Joe Biden speaking at a podium with an American flag in the background" title="President Joe Biden speaking at a podium with an American flag in the background"><figcaption>President Joe Biden speaking at a podium with an American flag in the background</figcaption></figure>]]>Allegations of Continued Enforcement
According to the OSC, former ED Assistant Secretary for Civil Rights Catherine Lhamon outlined a method in September 2022 for OCR to continue handling SOGI cases in states affected by the injunction. In an email, Lhamon acknowledged the court had blocked the department from "implementing" specific documents but stated that OCR would "continue to carry out its statutorily required responsibilities." She advised staff not to rely on the blocked documents when interpreting Title IX.
ADF Senior Counsel Jonathan Scruggs stated that the documents suggest Biden administration officials attempted to maintain enforcement of their gender-identity policies even after the court intervened. Scruggs described the situation as officials saying, "‘Hey, we can’t enforce these policies, but the injunction doesn’t reference the content of the policies.’" He further alleged that the Department of Education was "continuing to pressure and enforce these illegal policies," which he claimed would lead to "more men in women’s restrooms, redefinition of the meaning of sex in federal law as applied to these school districts."
The OSC has closed its investigation into the matter but has called for further accountability within the Department of Education and before Congress. Scruggs expressed hope that the public release of the records would expose the alleged actions and help prevent similar conduct in the future, suggesting that congressional or agency oversight might be necessary.