The Biden administration’s new Title IX regulation expanding protections for LGTBQ+ students goes into effect Aug. 1—in a confused and patchwork fashion as injunctions have blocked it in 26 states as well as at some schools in other states. It also takes effect as the U.S. Supreme Court weighs an emergency request from the Biden administration to partially limit those injunctions and allow most of the rule to take effect across the country.
The U.S. Department of Education regulation clarifies for the first time that the 1972 federal statute, which bars sex discrimination in federally funded educational programs, protects students based on sexual orientation and gender identity. It also expands protections for pregnant and postpartum students, offers stronger language about retaliation, and sets out new grievance and due-process procedures.
The regulation has been challenged by 26 states as well as individual school districts, students, and private groups. Most of those challenges center on the law’s revised definition of sex discrimination to include gender identity, which the challengers contend is not consistent with the text of Title IX.
Federal district courts have issued preliminary injunctions in recent weeks that block the rule in 22 states. One injunction also blocks it at any school attended by any child of the member of Moms for Liberty or two other challenging groups. Meanwhile, one federal district judge this week rejected the request for a preliminary injunction, in a suit brought by four conservative-leaning states—Alabama, Florida, Georgia, and South Carolina. But late Wednesday, a federal appeals court intervened and blocked the rule in those states at least pending further briefing in the next few days.
A request for emergency relief awaits Supreme Court action
Many educators and legal experts were expecting the U.S. Supreme Court to weigh in by the Aug. 1 effective date, but as of late in the day July 31, the court had not acted.
U.S. Solicitor General Elizabeth B. Prelogar last week asked the high court to allow most of the Title IX rule to take effect on Aug. 1, even as the Biden administration went along with pausing some challenged provisions that touch on gender-identity discrimination.
In requests that technically stemmed from the challenges involving 10 states, Prelogar said in her two main filings that the Biden administration did not object to pausing two provisions that she characterized as being at the heart of the multiple lawsuits challenging the new regulation. One of those deals with restrooms, locker rooms, and other sex-separated spaces in education. The regulation says, for example, that a school would violate Title IX if it prohibits transgender individuals from using restrooms that align with their gender identity.
The other challenged provision the administration is OK with leaving halted for now involves an update to the definition of “hostile-environment harassment” to include harassment based on gender identity. The challengers assert that language would be used to require teachers and students to refer to transgender students by pronouns that align with their gender identity.
Prelogar said the administration would defend those provisions in the course of the litigation but was not seeking to limit the injunction against them with its emergency request in the Supreme Court.
“Most of the rule does not address gender identity,” Prelogar said, citing among other things the regulation’s protections for pregnant and postpartum students, stronger language about retaliation, and new grievance procedures.
The solicitor general, however, did ask the justices to stay the injunctions with respect to the revised overall definition of sex discrimination in the regulation.
Prelogar argued for allowing the full definition, with its inclusion of gender identity, to go into effect. But as a fallback position, she suggested the reference to gender identity could be blocked while the rest of the definition went into effect.
States challenging the Title IX rule argue that Biden administration is trying to ‘salvage’ it by throwing some provisions ‘overboard’
Louisiana, in a brief responding to the solicitor general’s emergency application, said the U.S. Department of Education “has failed to convince a single court that the rule is likely lawful” and that as its “losses have mounted, the department has tried … to salvage the rule by throwing overboard the provisions that the department finds least defensible.”
Louisiana is defending a June 13 injunction issued by a federal district judge that also applies to Idaho, Mississippi, and Montana. That case is U.S. Department of Education v. Louisiana.
Alliance Defending Freedom, the conservative legal organization heavily involved in several of the challenges to the Title IX rule, filed a brief in the Supreme Court on behalf of its client in the Louisiana case, the Rapides Parish school board.
The brief said a partial stay of the injunction would be harmful because “schools would have to work out how the rule functions without its key provisions, amend their policies, and train their staff accordingly” all in short order and then possibly have to do it again after judicial review of the regulation was complete.
Meanwhile, the other case before the court is Cardona v. Tennessee, in which Tennessee along with Indiana, Kentucky, Ohio, Virginia, and West Virginia is defending a June 17 district court injunction blocking the entire rule. Those states argued in a brief that the Biden administration was inappropriately seeking a “merits preview” from the Supreme Court of the key issue of whether Title IX covers gender identity “to stem the tide of adverse decisions” from lower courts.
“The states challenged the whole rule” and “are injured by the whole rule,” the Tennessee brief said.
The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, accepted that argument in a 2-1 panel decision on July 17 that upheld the injunction in the Tennessee-led case. The majority of that panel sought to explain why it believed blocking part or all of the new definition of sex discrimination would be problematic for the rule’s other provisions.
“Each of the provisions that the department wishes to begin enforcing on August 1 implicates the new definition of sex discrimination,” the 6th Circuit said. “It is hard to see how all of the schools covered by Title IX could comply with this wide swath of new obligations if the rule’s definition of sex discrimination remains [blocked].”
One separate injunction also applies to certain schools in a wider swath of states
Only one federal judge has rejected a preliminary injunction. On July 30, U.S. District Judge Annemarie Carney Axon of Birmingham, Ala., an appointee of President Donald Trump, rejected a preliminary injunction sought by Alabama, Florida, Georgia, and South Carolina to block the regulation. The plaintiffs’ evidence was sparse and their legal arguments were “conclusory and underdeveloped,” she said.
Late on July 31, the U.S. Court of Appeals for the 11th Circuit, in Atlanta, granted an emergency request by the plaintiffs in that case to block the regulation in those four states.
Several other federal district courts did issue injunctions blocking the regulation in 12 states in addition to the 10 involved in the emergency applications in the Supreme Court. One of those, issued July 2 by a U.S. district judge in Kansas, covers that state plus Alaska, Utah, and Wyoming. It also has a unusual provision covering any school attended by children of members of three groups that joined that challenge, regardless of which state those schools are in. Those groups are Young America’s Foundation, Female Athletes United, and Moms for Liberty.
Judge John W. Broomes on July 19 declined a request from Moms for Liberty, which is represented by Alliance Defending Freedom, to alter his injunction to cover any county where there was a school attended by one of the group’s members, which would have even further expanded the geographic scope. But he did clarify that the groups could enlist new members and add their children’s schools to the list.
That prompted Moms for Liberty last week to launch an effort to enlist new members and have new and existing members add the names of their children’s schools to their profiles.
“In order to give the judge a list of these schools while protecting the names of our members, which could be connected to their minor children, we will submit a list of schools where members opted in to be protected from Title IX through our website,” Moms for Liberty co-founders Tina Descovich and Tiffany Justice said in a July 23 statement.
