[co-author: Samuel Edwards]
A federal judge in the Eastern District of Kentucky has enjoined the United States Department of Education from implementing or enforcing the 2024 Title IX regulations. The injunction is limited to the states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia and prevents the new regulations from taking effect as scheduled on August 1, 2024. State of Tennessee v. Cardona, Case No. 2:24-072-DCR.
The Court concluded that “sex” as understood in Title IX is limited to a fixed biological dichotomy and emphasized that the ruling of Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020) is limited to Title VII. Judge Reeves’ order found that the new rule contravenes the plain text of Title IX by redefining “sex” to include gender identity, that the regulations likely violate government employees’ and students’ First Amendment rights, and the rule is the result of arbitrary and capricious rulemaking.
The Blocked 2024 Title IX Regulations
The Department of Education recently amended regulations implementing Title IX by issuing a Final Rule: “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” 89 Fed. Reg. 33474 (Apr. 29, 2024). Under the 2024 regulations, it is clarified for Title IX purposes that “discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”Id. at 33476 (to be codified at 34 C.F.R. §106.10).
The 2024 regulations also redefine “sexual harassment” as “sex-based harassment,” which means “sexual harassment and other harassment on the basis of sex, including on the basis described in 34 C.F.R. § 106.10…”. 34 C.F.R. 106.2—which, as cited above, includes sexual orientation and gender identity. Additionally, hostile environmental harassment is redefined to include “unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity…”34 C.F.R. 106.2 (effective Aug. 1, 2024).
Sex in Title IX Defined by the Eastern District of Kentucky
With “sex” being left undefined within the statute, the Court looked to its ordinary meaning at the time Title IX was created, finding that at that time the term was understood to mean “the character of either being male or female.” Further, the Court noted that Title IX lists multiple exceptions to the discrimination ban, which explicitly authorizes institutions to treat males and females differently in certain situations. From this, the Court concluded that in drafting Title IX, Congress presumed that males and females would be separated by biological sex. The Court attributed the Department of Education’s clarification of “sex” to include gender identity as based upon the Supreme Court’s decision in a case that concerned claims of employment discrimination under Title VII of the Civil Rights Act, Bostock v. Clayton. In Bostock, the Supreme Court there observed that “homosexuality and transgender status are inextricably bound up with sex” so to discriminate on those grounds “requires an employer to intentionally treat the individual differently because of their sex” and thereby violate Title VII. Id, at 660-661. Judge Reeves noted with favor, however, that in Bostock the Supreme Court clarified its decision was contained to Title VII, with no effect on other federal or state laws that prohibit sex discrimination. Id, at 681. And Judge Reeves observed, Bostock said nothing about bathrooms or locker rooms.
Plaintiffs’ Likelihood to Succeed on Their First Amendment Claims
Given the newly provided term of “sex-based harassment” and the Department of Education’s recent actions regarding misgendering, Judge Reeves also opined that the 2024 regulations would likely require teachers and students to use preferred pronouns of others that may not traditionally align with their biological sex. He then reasoned that private and public institutions, as well as their students, faculty, and staff, would be unconstitutionally compelled to convey a message that may contradict moral or religious values.
Arbitrary and Capricious
Outside of its connection to Bostock, the Court found the Department of Education’s additional justifications for changing its interpretation of sex to be arbitrary and capricious. Judge Reeves reasoned that the 2024 regulations create a reality in which student housing (and as a result the toilets and showers in said housing) remains sex-segregated while students are free to choose the bathrooms and locker rooms they use based on gender identity.[1]
Next Steps?
While the Court’s decision here provides a much-needed interpretation of Bostock’s applicability to Title IX, the story is not over. The decision will inevitably be appealed to the Sixth Circuit (which governs Ohio, Kentucky, Tennessee, and Michigan); therefore, the ultimate outcome and interpretation of Title IX in the Sixth Circuit is unknown at this time. For this reason, school districts should consult with their legal counsel, ideally, this summer, in order to come up with a plan to address training of staff and any potential policy revisions for the coming school year.
[1]The Court also found plaintiffs were likely to succeed on their parental rights and states’ rights claims.
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