Different School of Thought, Part II: New Title IX Regulations Blocked in Ten States

Quick Hits

• Federal district courts in Kentucky and Louisiana have issued injunctions blocking the implementation and enforcement of the U.S. Department of Education’s new Title IX regulations in ten states.
• The U.S. District Court for the Eastern District of Kentucky held that the U.S. Department of Education had exceeded its statutory authority by redefining “sex” to include “gender identity.”
• The federal district court also ruled that the new Title IX regulations raised First Amendment concerns by potentially compelling speech and that the rulemaking was arbitrary and capricious.

The ruling follows an injunction issued on June 13, 2024, by a Louisiana federal district court, which temporarily stayed enforcement of the new rules in Idaho, Louisiana, Mississippi, and Montana. The dispute arose because of a provision in the new regulations expanding coverage of Title IX to LGBTQ+ students. Under the new rules, in addition to the current standards addressing discrimination on the basis of sex, Title IX will protect against discrimination based on sexual orientation or gender identity.

The court’s key reasons for enjoining the new regulations are:

• The Department exceeded its statutory authority under Title IX by redefining “sex” to include “gender identity.” The court found that based on the plain text and legislative history of Title IX, “sex” was intended to refer to biological sex, not gender identity.

• The new rules raise First Amendment concerns by potentially compelling speech, such as requiring teachers to use students’ preferred pronouns, even if doing so conflicts with their religious beliefs, and engaging in viewpoint discrimination.

• The Department’s rulemaking was arbitrary and capricious. The Department failed to provide a reasoned explanation for departing from long-standing interpretations of “sex,” left regulations in place that conflict with the new “gender identity” mandate, and failed to adequately address safety concerns raised in public comments.

The preliminary injunction issued by the U.S. District Court for the Eastern District of Kentucky stayed the implementation and enforcement of the final rule in six states. In considering the preliminary injunction, the court found that the plaintiffs demonstrated a likelihood of irreparable harm through unrecoverable compliance costs, potential loss of federal funding, interference with state sovereignty in education, and constitutional violations. The court also applied the major questions doctrine and clear statement rule, finding that both weighed against the Department’s interpretation of Title IX, as such a major change to the meaning of a key statutory term requires clear congressional authorization. Finally, the court noted that the final rule undermined parental rights by potentially requiring schools to treat children consistent with their gender identity, even over parental objections.

Key Takeaways

For now, the courts that have ruled on these cases have enjoined the U.S. Department of Education from implementing or enforcing the final rule redefining sex discrimination under Title IX to include gender identity. This means the understanding of “sex” based on biological differences between males and females—which is outlined in the current regulations—remains in effect. With the Department now enjoined and restrained from implementing or otherwise enforcing the final rule in ten states, and with similar lawsuits pending, the ultimate fate and applicability of the final rule remains in question.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments related to the litigation challenging the 2024 Title IX regulations and will provide updates on the Higher Education and State Developments blogs as additional information becomes available.

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