On June 17, 2024, Judge Danny C. Reeves of the U.S. District Court for the Eastern District of Kentucky issued a 93-page order in the case of State of Tennessee v. Cardona, Case No. 2:24-072-DCR. The Order grants motions for a preliminary injunction/stay filed by the six plaintiff states: Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. Specifically, the Order enjoins and restrains the U.S. Department of Education from “implementing, enacting, enforcing, or taking any action in any manner to enforce” the 2024 Title IX regulations. 

Among the many arguments considered, the most notable to the Title IX practitioner include that the Court rejected the application of Bostock to Title IX and the expansive reading of the definition of “sex” under the new regulations, and found that the regulations likely violate the First Amendment in requiring the use of preferred pronouns. Notably, the decision does not address the changes to decision-maker resolution procedures, any rights to cross-examination or advisors, or any of the other procedural issues that post-secondary educational institutions would need to revise in their policies upon the regulations taking effect.

The Court enjoined the entirety of the Final Rule, 89 FR 33474 (April 29, 2024), from going into effect on August 1, 2024, in the plaintiff states. Institutions of higher education in these states should consult with legal counsel prior to any plans to adopt revised policies based on the 2024 regulations, pending further decisions from the courts.

Note: This decision is the second federal decision that has enjoined the Title IX regulations. On June 13, 2024, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana issued an order enjoining enforcement of the new regulations in Louisiana, Montana, Mississippi, and Idaho in State of Louisiana v. U.S. Dep’t of Educ., Case No. 3:24-CV-00563.

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