Injunctions Block New Title IX Updates in Ten States

Matthew Heldman,^[1] Fraternal Law Partners, matthew.heldman@manleyburke.com

Two federal judges issued orders this month temporarily blocking the U.S. Department of Education’s updates to Title IX, which prohibits gender- and sex-based discrimination, that were released in April and are set to take effect August 1, 2024.[1]

On June 13, 2024, Chief Judge Terry Doughty of the Western District of Louisiana issued a preliminary injunction that blocks the new rules from taking effect in four states: Louisiana, Mississippi, Montana, and Idaho.[2] Four days later, on June 17, 2024, Chief Judge Danny Reeves of the Eastern District of Kentucky issued a preliminary injunction that has additionally temporarily blocked the new rules in Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia.[3] All ten states’ attorneys general sued to block the changes from taking effect, and are of twenty-six (26) total state attorneys general that have filed challenges against the Biden Administration’s new rules.[4] As such, more injunctions may follow from additional pending cases.[5]

            The primary issue the states have stems from the new, broadened definition of sex-based discrimination.[6] Under the new rules, the term now includes “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”[7] The states allege that the new definition and rules, aimed in part at protecting transgender students, are “arbitrary and capricious” and will have implications that include prohibiting gender-specific facilities such as restrooms and locker rooms.[8] The Louisiana court held that the changes “would subvert the original purpose of Title IX,” which, it says, was intended to protect from discrimination against biological women.[9] Chief Judge Reeves in Kentucky similarly said that the expanded definition “wreaks havoc on Title IX” and that the update “seeks to derail deeply rooted law.”[10] Judge Doughty called the update an “abuse of power by executive federal agencies,”[11] while Judge Reeves said that it is “arbitrary in the truest sense” and “carries serious First Amendment implications.”[12]

            The Department of Education however, reacted to the Louisiana order by asserting that it “stands by” the updated regulations and that “Title IX guarantees that no person experiences sex discrimination in a federally-funded educational environment.”[13] The Department said it “will continue to fight for every student.”[14] The Biden administration believes the updated rules are legally supported by Bostock v. Clayton County, the 2020 landmark Supreme Court decision that held it is unlawful to discriminate against people based on their gender identity or sexual orientation in the workplace.[15] The Department of Education is expected to appeal both orders.[16]

[1] See generally Louisiana v. U.S. Dept. of Educ., No. 3:24-CV-00563, 2024 WL 2978786 (W.D. La. June 13, 2024); Tennessee v. Cardona, No. 2:24-072-DCR, 2024 WL 3019146 (E.D. Ky. June 17, 2024).

[2] Louisiana, 2024 WL 2978786, at *21.

[3] Cardona, 2024 WL 3019146, at *44.

[4] Katherine Knott, New Title IX Regulations Blocked in Six More States, Inside Higher Ed (June 18, 2024), https://www.insidehighered.com/news/quick-takes/2024/06/18/new-title-ix-regulations-blocked-six-more-states.

[5] Id.

[6] Id.

[7] 34 CFR § 106.10 (2024).

[8] Knott, supra note 5.

[9] Bianca Quilantan, Federal Judge Delivers First Blow to Biden’s Protections for Transgender Students, Politico (June 13, 2024, 11:22 pm), https://www.politico.com/news/2024/06/13/title-ix-blocked-louisiana-00163364 (quoting Louisiana, 2024 WL 2978786, at *12).

[10] Knott, supra note 5 (quoting Cardona, 2024 WL 3019146, at *12, *44).

[11] Quilantan, supra note 10 (quoting Louisiana, 2024 WL 2978786, at *20).

[12] Knott, supra note 5 (quoting Cardona, 2024 WL 3019146, at *43-44).

[13] Quilantan, supra note 10.

[14] Id.

[15] Id.

[16] Knott, supra note 5; see Quilantan, supra note 10.