“A preliminary injunction has been granted in a lawsuit that West Virginia is a part of against the Biden Administration’s recent Title IX rewrite which expanded the definitions of sex-based discrimination to include gender identity.”
Why this is important: Since the U.S. Department of Education (ED) released its amended Title IX regulations on April 19, 2024 (Final Rule), numerous school boards, the attorneys general for 26 states (Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming), and other interested parties have initiated nine separate lawsuits seeking to block enforcement of the Final Rule. Significantly, two of these actions have recently gained traction before the U.S. District Court for the Western District of Louisiana and the U.S. District Court for the Eastern District of Kentucky, resulting in a stay of the Final Rule that impacts the obligations of schools, universities, and other Title IX-covered entities in the affected states.
On June 13, 2024, Judge Terry A. Doughty of the Western District of Louisiana granted a preliminary injunction stopping enforcement of the Final Rule in Louisiana, Mississippi, Montana, and Idaho. In so ruling, the court found that the plaintiffs were likely to succeed on the merits of their claims that the Final Rule is contrary to the Administrative Procedures Act (APA), violates the Free Speech Clause of the First Amendment, violates the Exercise Clause of the First Amendment, violates the Spending Clause, and is arbitrary and capricious under the APA. In particular, the court ruled that ED had exceeded its authority and acted counter to the original purpose of Title IX by allowing “sex discrimination” covered by Title IX to encompass anything more than discrimination on the basis of biological sex, taking direct aim at the expansion of sex discrimination under the Final Rule to include discrimination based on gender identity, sex stereotypes, sexual orientation, or sex characteristics. The court also ruled that the new “harassment standard” under the Final Rule, which establishes a claim of sex-based harassment when the conduct is so “severe or pervasive” that it “limits” participation in a program or activity, is contrary to Title IX. Ruling that the plaintiffs had made “compelling arguments” this standard violates free speech under the First Amendment, the court was persuaded that the Final Rule would compel staff and students to use pronouns consistent with individuals’ gender identities even when contrary to “grammar rules, reality, or political ideologies.”
Less than one week later, on July 17, 2024, Chief Judge Danny C. Reeves of the Eastern District of Kentucky similarly enjoined and restrained ED from implementing, enacting, or enforcing the Final Rule in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia in a 93-page order stating that ED had attempted to “dramatically alter the purpose and meaning of Title IX through rulemaking.” Like the order issued by Judge Doughty, the ruling by Judge Reeves stated that the Final Rule “would turn Title IX on its head by defining ‘sex’ to include ‘gender identity’” and likely require educators “to use students’ preferred pronouns regardless of whether doing so conflicts with the educator[s’] religious or moral beliefs.”
Notably, both courts took issue with ED relying, in part, on Bostock v. Clayton County, Georgia, the 2020 United States Supreme Court decision ruling that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of gender identity or sexual orientation, for its expansion of Title IX to provide similar protections. Both injunctions also block enforcement of the Final Rule in its entirety rather than any particular provision of the Final Rule. Despite significant allowances for schools to alter their Title IX grievance procedures under the Final Rule, namely the elimination of mandatory live hearings with cross examination, neither court addressed the matter. Instead, the Final Rule and pending cases highlight the same politically charged gridlock over LGBTQ+ protections that has affected education legislation for years. Signaling the protracted legal battle in store, on June 24, 2024, ED filed its notice of appeal concerning the preliminary injunction issued by the Western District of Louisiana.
To complicate matters, on June 28, 2024, the United States Supreme Court overturned longstanding precedent known as the “Chevron Deference” in Loper Bright Enterprises v. Raimondo, ruling that courts reviewing the actions of federal agencies must exercise “independent judgment” and may not “defer to an agency interpretation of the law simply because a statute is ambiguous. Though Loper did not concern education or ED, the decision will impair the authority of agencies like ED to engage in rulemaking and interpret the laws that they are obligated to regulate. Case in point, in the pending lawsuit initiated by Arkansas and other plaintiff states in the United District Court for the Eastern District of Missouri challenging the Final Rule, the court has already ordered briefing by the parties regarding the impact of Loper on the plaintiffs’ motion for preliminary injunction to halt enforcement of the Final Rule. Loper will make enforcement of the Final Rule more difficult for ED.
Educational institutions, Title IX administrators, and compliance officers are again caught in the cross-hairs of this political debate. While the majority of Title IX-covered entities must comply with the Final Rule by the approaching August 1, 2024 deadline, including required policy and training updates, those situated in the enjoined states should continue to comply with and not eliminate due process required under existing Title IX regulations, consult their legal counsel regarding additional obligations, and be prepared to issue policy updates promptly in the event that the injunctions are overturned. The preliminary injunctions are not final rulings on the merits of the pending cases, but rather temporary orders pending such decisions; and it could be a year or more before these cases are fully and finally resolved. If you have any questions or concerns about Title IX compliance under these varying frameworks, please reach out to your Spilman attorney for further support. --- Erin Jones Adams