As previously reported, the U.S. Department of Education published its highly-anticipated revised Title IX regulations on April 29, 2024. These regulations move away from the rigid procedural requirements mandated by the current regulations, and set forth a number of expanded protections for students, employees and applicants—specifically prohibiting harassment and discrimination based on sex stereotypes, sex characteristics, sexual orientation, gender identity, and pregnancy or related conditions.

Immediately after publication, several states filed suit challenging the enforceability of these regulations. Although each suit contests the regulations on different grounds, collectively the suits claim that the Department of Education went beyond its statutory authority by redefining “sex” to include gender identity and sexual orientation, violated certain requirements of the Administrative Procedure Act (“APA”), ran afoul of the Spending Clause, violated the First Amendment by compelling speech and unlawfully exercised legislative power under Article I of the U.S. Constitution. This alert briefly summarizes the granted and pending preliminary injunctions and addresses the steps colleges and universities should take in light of the same.

The Lay of the Land

Four federal district courts have already granted preliminary injunctions enjoining enforcement of the revised Title IX regulations:

1. The Western District of Louisiana, on June 13, 2024, enjoined enforcement in: Idaho, Louisiana, Mississippi, and Montana.
2. The Eastern District of Kentucky, on June 17, 2024, enjoined enforcement in: Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia.
3. The District of Kansas, on July 2, 2024, enjoined enforcement in: Alaska, Kansas, Utah, and Wyoming. Additionally, the court enjoined enforcement of the regulations against any college or university attended by a member or child of a member of any of the three Plaintiff voluntary member associations—Young America’s Foundation, Female Athletes United, Moms for Liberty. On July 15, the Plaintiff member associations filed a list of hundreds of colleges and universities purportedly attended by its members or their children, which has not yet been formally approved by the District of Kansas.
4. The Northern District of Texas, on July 11, 2024, enjoined enforcement in: Texas.

Although the Department of Education continues to challenge these injunctions—for example, by appealing them and asking the courts to stay the injunctions pending the outcome of the appeals—it has been largely unsuccessful in its oppositional efforts.

Similar injunctions blocking enforcement of the Title IX regulations are pending in additional federal district courts, including the following:

1. The Northern District of Alabama is reviewing a request for an injunction covering Alabama, Florida, Georgia, South Carolina, and states in which any of the following organizations have a presence: Independent Women’s Law Center, Independent Women’s Network, Parents Defending Education and Speech First.
2. The Western District of Oklahoma is reviewing a request for an injunction covering Oklahoma.
3. The Eastern District of Missouri is reviewing a request for an injunction covering all 50 states.

Notably, the federal district courts are not the only governmental entities fielding challenges to these new Title IX regulations. The U.S. House of Representatives also recently voted to pass a joint resolution invoking the Congressional Review Act, which allows Congress to overturn the Title IX rule and give federal lawmakers 60 congressional days to rescind or approve it. This resolution, however, is unlikely to get the support of the current Senate.

What Should Colleges and Universities Do Now?

As to colleges and universities located within the states expressly covered by the four already-issued preliminary injunctions, the Department of Education cannot require compliance with the 2024 regulations. Accordingly, these colleges and universities need not implement new Title IX policies, procedures, or training programs compliant with the 2024 regulations. They may instead retain or make modifications to their already-in-effect ones, provided that they comply with the 2020 regulations and any other applicable state or local laws.

As to colleges and universities included on the list submitted in the Kansas case, so long as the Kansas injunction remains in place and students from the Plaintiff member associations remain enrolled at those institutions, the Department of Education is likewise prevented from requiring those institutions to comply with the 2024 regulations. Accordingly, these colleges and universities also need not implement new Title IX policies, procedures, or training programs compliant with the 2024 regulations. It is important to note, however, that the Kansas injunction is currently under appeal, and as a result, impacted colleges and universities should work with legal counsel to monitor the Kansas litigation (as well as other pending cases) for developments and be prepared to adjust their game plan in light of the same.

For all other colleges and universities, it is important to closely monitor ongoing cases. The states and educational institutions impacted by anticipated forthcoming injunctions may quickly change. Absent an injunction applicable to them, these colleges and universities must remain prepared to comply with the 2024 Title IX Regulations beginning on August 1, 2024.