Different School of Thought, Part III: New Title IX Regulations Now Blocked by Four Courts, Affecting 15 States

Quick Hits

• Federal district courts in Kansas and Texas issued preliminary injunctions blocking enforcement of the U.S. Department of Education’s new Title IX regulations against the states of Alaska, Kansas, Texas, Utah, and Wyoming.
• The courts held that the Department of Education did not have the authority to interpret Title IX’s prohibition of discrimination on the basis of sex to include discrimination based on sexual orientation and gender identity.
• The Department of Education is now blocked from enforcing the new Title IX regulations against fifteen states and hundreds of schools, colleges, and universities beyond the bounds of those states.

Joining courts in Kentucky and Louisiana, the U.S. District Court for the District of Kansas issued a preliminary injunction on July 2, 2024, enjoining the Department of Education from taking any action to enforce the final rule titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” against the states of Alaska, Kansas, Utah, and Wyoming and various schools attended by children of the members of the organizations that participated as plaintiffs. The Department of Education filed an appeal of the Kansas court’s preliminary injunction in the U.S. Court of Appeals for the Tenth Circuit on July 10, 2024.

On July 11, 2024, the U.S. District Court for the Northern District of Texas issued a preliminary injunction prohibiting the Department of Education from taking any action to enforce the rule against the State of Texas and individual plaintiff organizations. In addition to following similar reasoning as the Kentucky and Louisiana courts, the Texas court found that the State of Texas and its political subdivisions were on a “collision course” with the 2024 Rule because Texas state law prohibits student athletes from competing in competitions “designated for the biological sex opposite to the student’s biological sex.” The Texas ruling was not a significant surprise, given that the same court had issued a permanent injunction on June 11, 2024, vacating and prohibiting enforcement of the Department of Education’s 2021 Interpretation (updated on July 15, 2022, and June 11, 2024) (by which the Department had sought to “clarify [its] enforcement authority over discrimination based on sexual orientation and discrimination based on gender identity under Title IX … in light of the Supreme Court’s decision in Bostock v. Clayton County”); the Department’s Dear Educator Letter, issued on the forty-ninth anniversary of the passage of Title IX; and its fact sheet, titled, “Confronting Anti-LGBTQI+ Harassment in Schools.” Those guidance documents were a precursor to the 2024 Rule, interpreting Title IX’s prohibition of discrimination on the basis of sex to encompass discrimination based on sexual orientation and gender identity.

The basis for the Kansas and Texas courts’ rulings was essentially the same as the basis for the rulings by the Louisiana and Kentucky courts. All decisions were based on the finding that the Department did not have authority to interpret Title IX’s prohibition of discrimination on the basis of sex to include discrimination based on sexual orientation and gender identity. None of the courts, however, limited its preliminary injunction to that one aspect of the 2024 Rule. The language of each preliminary injunction prohibits enforcement of the 2024 Rule as a whole, which effectively stops enforcement of all the procedural changes to the Title IX regulations we detailed in Ogletree’s four-part analysis of the 2024 regulations. The Department of Education asked the U.S. Courts of Appeals for the Fifth and Sixth Circuits to stay the injunctions with respect to the parts of the 2024 Rule unrelated to the gender identity issue. Both courts refused the request, temporarily leaving intact the injunctions against the entire 2024 Rule.

Educational institutions should know these rulings are merely preliminary injunctions and do not become final until each case is finally resolved. The preliminary injunctions are effective only during the pendency of the lawsuits. A preliminary injunction could become permanent or could be dissolved at the conclusion of each case.

States and Institutions Covered by the Injunctions

Thus far, courts have preliminarily enjoined the Department of Education from enforcing the 2024 Rule against these fifteen states:

Alaska	Ohio
Idaho	Tennessee
Indiana	Texas
Kansas	Utah
Kentucky	Virginia
Louisiana	West Virginia
Mississippi	Wyoming
Montana

Another case challenging the 2024 Title IX Rule is pending in the U.S. District Court for the Northern District of Alabama. The states bringing that case are Alabama, Florida, Georgia, and South Carolina. The court heard oral arguments on July 1, 2024, and a decision is expected soon.

Most of the district court injunctions are limited to prohibiting the application of the 2024 Rule against the states that brought the lawsuits. But the injunctions do not specifically prohibit enforcement of the 2024 Rule against all non-state educational institutions in the plaintiff states. The Louisiana preliminary injunction is somewhat ambiguous, stating that it is “limited to the States of Louisiana, Mississippi, Montana, and Idaho,” which might be read as applying the injunction in those states rather than merely to those plaintiff states as parties. Private educational institutions in all fifteen affected states should not count on the Department of Education refraining from attempting to enforce the 2024 Rule against non-state entities in those states, at least until each case is finally decided.

The Kansas injunction, however, may affect institutions in every state. It prohibits enforcement of the 2024 Rule against colleges and universities attended by members of plaintiff organizations Young America’s Foundation and Female Athletes United. The list of member-attended institutions includes 688 public and private colleges and universities located in virtually every state in the United States. (Lists of impacted institutions are contained in a July 15, 2024, filing by the plaintiff organizations in State of Kansas v. U.S. Department of Education, Case No. 24-4041-JWB, Document 67.)

The Kansas injunction also extends to schools attended by members (and members’ children) of plaintiff Moms for Liberty, Inc., which reportedly has 300 local chapters and 130,000 members across the country. The Kansas injunction, therefore, may extend far beyond the bounds of the states that appeared as plaintiffs in the case.

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. For institutions affected by the preliminary injunctions, this means the understanding of “sex” based on biological differences between males and females—which is outlined in the 2020 regulations—remains in effect. With the Department now enjoined and restrained from implementing or otherwise enforcing the final rule against fifteen states, with possibly four more to come soon, 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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