On Jan. 9, 2025, the Eastern District of Kentucky held in State of Tennessee, et al. v. Miguel Cardona, et al. that the U.S. Department of Education’s 2024 Final Rule (“Final Rule”) implementing Title IX is “unlawful.” This court decision applies nationwide and returns Title IX to its 2020 regulations.
Even before yesterday’s ruling, several courts had issued injunctions, resulting in the 2024 regulations having no effect in 26 states and at additional individual colleges and universities across the country that had joined in the lawsuits as parties or that had plaintiff association members at the institution.
Like so many cases that have been revisited, and following the rationale in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the court determined in State of Tennessee that the Final Rule suffered from several legally fatal defects. These include that the Final Rule went farther than permitted by Title IX in its definition of sex to include gender identity, its definition of sex-based harassment, and the scope of the Final Rule’s jurisdictional application.
As of today, those institutions that had been operating pursuant to the 2024 Final Rule will need to revert to a practice that is compliant with the 2020 regulations. This does not necessarily mean that a prior policy should be resurrected as not all aspects of the Final Rule must be discarded. For example, while the Final Rule provided increased protections and accommodations for pregnant students and, while those aspects of the regulations are no longer subject to enforcement under Title IX, they do not necessarily contravene the 2020 regulations. Keep in mind, however, that the U.S. Supreme Court’s Bostock v Clayton County, 590 US 644 (2020) decision, holding that Title VII’s protections against sex discrimination apply to gender identity and sexual orientation does not apply to Title IX, but that there are other federal or state statutes that might provide broader protection than Title IX. While the protections afforded under Title IX may be scaled back, academic institutions have obligations under Title VII, Title VI, and in some cases, state law to prevent discrimination based on gender, gender identity, expression, orientation, and transgender status.
While it is possible that the Department could appeal this decision, in light of the change in administration, it appears unlikely. Institutions are encouraged to dust off their 2020 policies and sit down with counsel to update their practices with best practices and guidance issued by the Department since 2020, and to have a comprehensive review of other policies that may apply where Title IX does not.
