Last Thursday, a United States District Court in Louisiana enjoined implementation of the amended Title IX regulations (2024 Final Rule), the first decision in one of several cases challenging the 2024 Final Rule. The new regulations are set to go into effect on August 1, but this ruling enjoins enforcement only in the states of Louisiana, Mississippi, Montana, and Idaho (the Plaintiff States). The U.S Department of Education (USDOE) published the 2024 Final Rule in the Federal Register on April 29, 2024. Louisiana, Mississippi, Montana, Idaho, and the School Board of Rapides Parish, later joined by the school boards of approximately 17 other Louisiana parishes, filed suit the same day. The Plaintiffs requested a preliminary injunction and/or temporary restraining order to stop the implementation of the 2024 Final Rule.

The Background

On April 19, 2024, after an almost two-year process reviewing the 240,000+ comments to the 2022 Title IX proposed regulations, the USDOE released its amended regulations to Title IX. In response, multiple states – at last count 26 states – advocacy groups, and school districts filed lawsuits challenging the enforcement of the 2024 Final Rule.

The Opinion

In this case filed in Louisiana, the Court found that the 2024 Final Rule “redefines ‘sex discrimination’ to include gender identity, sexual orientation, sex stereotypes, and sex characteristics; preempts state law to the contrary; requires students to be allowed to access bathrooms and locker rooms based on their gender identity; prohibits schools from requiring medical or other documentation to validate the student’s gender identity; requires schools to use whatever pronouns the student requires; and imposes additional requirements which will result in substantial costs to the school.”

It its 40-page opinion, the Court exhaustively examined the Plaintiffs’ claims and the USDOE’s responses, holding that the State and school district Plaintiffs were likely to succeed on the merits of the case. One of the many points in the Plaintiffs’ lawsuit was that the 2024 Final Rule subverts the original intent of Title IX, which was to protect women from discrimination in education. The Court agreed, holding that the Final Rule is “inconsistent with the text, structure, and purpose of Title IX.” The Court determined that the 2024 Final Rule:

(1) is contrary to law under the Administrative Procedures Act (APA),

(2) violates the Free Speech Clause of the First Amendment,

(3) violates the Free Exercise Clause of the First Amendment,

(4) violates the Spending Clause, and

(5) is arbitrary and capricious as to certain provisions of the APA.

In reviewing the arguments between the States and the USDOE, the Court looked at several situations that occur in education entities where the education entity was being mandated to act under the 2024 Final Rule in a manner that was contrary to other laws governing education entities. For example, the Court reviewed the Plaintiffs’ argument that the 2024 Final Rule:

chills and punishes protected speech under the First Amendment as it would compel staff and students to use whatever pronouns a person demands, even when those are contrary to grammar rules, reality, or political ideologies, and it further prohibits staff and students from expressing their own views on certain topics. Essentially, the harassment standard allows for one political ideology to dominate the educational landscape while either silencing the other or calling the other “harassment” under these standards.

The Court stated that it did not consider the merits of this case at this point but found that the Plaintiffs had made a compelling case that the 2024 Final Rule violates free speech rights under the First Amendment.

The Court stated that although Title IX was originally enacted to protect biological females from discrimination, the 2024 Final Rule “may likely cause biological females more discrimination than they had before Title IX was enacted.” The Court noted that the Defendants only focused on the “effect on the student who changes their gender identity,” but did not consider the impact the 2024 Final Rule “would have on biological females by requiring them to share their bathrooms and locker rooms with biological males.” The Court referenced “cisgender females,” many of whom are minors, who “must use the bathroom, undress, and shower in the presence of persons who may identify as females but still have male biological parts.” The Court pointed out that education entities implementing the 2024 Final Rule would subject biological females to the risk of invasion of privacy, embarrassment, and sexual assault.

The Court concluded that the State and school district Plaintiffs had demonstrated “the abuse of power by executive federal agencies in the rulemaking process,” further determining that the separation of powers and the system of checks and balances “exist in this country for a reason.” In its analysis of the Defendants’ actions in adopting the 2024 Final Rule, the Court stated that the “abuse of power by administrative agencies is a threat to democracy.” Ultimately, the Court:

(1) granted the Plaintiffs’ motion for preliminary injunction,

(2) ordered that the Defendants (Department of Education, Office of Civil Rights, Secretary of the U.S. Department of Education, Assistant Secretary of the Office of Civil Rights, and United States Attorney General) were enjoined from “implementing, enacting, enforcing and taking action in any manner to enforce the Final Rule” which was scheduled to go into effect August 1, 2024,

(3) ordered that the 2024 Final Rule was enjoined and restrained from going into effect on August 1, 2024, pending further orders of the Court, and

(4) ordered that the preliminary injunction would remain in effect pending final resolution of this case, or until further orders from this Court, the United States Court of Appeals for the Fifth Circuit, or the Supreme Court of the United States.

The Next Steps

This June 13, 2024, ruling applies only to the four Plaintiff States of Louisiana, Mississippi, Montana, and Idaho. As such, the Court has enjoined the implementation of the 2024 Final Rule during the pendency of this litigation in these states. The current Title IX regulations (2020 Final Rule) remain in place for these four states. Education entities in these states should consult their local board attorney regarding this Court’s Order.

There are multiple lawsuits challenging the 2024 Final Rule in other states. With more than a month before August 1, 2024, the implementation date of the 2024 Title IX Final Rule, we will likely see additional activity in those cases. In fact, as this update was being prepared, a federal district court in Kentucky entered a memorandum opinion and order enjoining and restraining the USDOE from implementing, enacting, enforcing or taking any action in any manner to enforce the 2024 Final Rule as to Plaintiff States Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia.