“For all schools that receive federal funding, the rule protects against discrimination for students based on ‘sex stereotypes, sexual orientation, gender identity, and sex characteristics.’”

Why this is important: On July 11, 2024, the U.S. House of Representatives passed a resolution, along party lines, that would use the Congressional Review Act to reverse the Title IX rule issued by the U.S. Department of Education (ED) in April seeking to extend federal discrimination protections for LGBTQ+ students (Final Rule). This Act is a procedural tool Congress can use to overturn certain actions from federal agencies. President Biden has vowed to veto it.

For schools that receive federal funding, the Final Rule protects students against discrimination based on “sex stereotypes, sexual orientation, gender identity, and sex characteristics.” In the Senate, legislation was also introduced to try to block the Final Rule under the same tool. The Senate version has gathered over 30 Republican co-sponsors. However, even if this would pass in the Democrat-controlled Senate, the President’s veto threat means there is virtually no possibility it could be adopted this year.

Proponents of the resolution say that Title IX provided women opportunities in education and competitions. They fear that these opportunities for young girls will fade if the Final Rule is allowed to stand, particularly with women’s sports programs. Opponents of the resolution say that it is being driven by misinformation and hatred of transgender individuals. Instead, they say the focus should be on defending women’s reproductive health care, making child care more affordable, and preserving opportunities in the workplace.

In the meantime, challenges to the Final Rule are playing out in federal courts across the country. Twenty-six states have sued to block the Final Rule. In June, U.S. District Judge Terry Doughty of Louisiana issued a temporary injunction barring the Final Rule from taking effect there and in Idaho, Mississippi, and Montana. In a Kentucky federal court, Chief Judge Danny Reeves temporarily blocked the Final Rule there and in Tennessee, Ohio, Indiana, West Virginia, and Virginia. Chief Judge Reeves rejected ED’s request for a partial stay of the injunction while its appeal plays out. Judge John Broomes of the U.S. District Court for the District of Kansas temporarily blocked the Final Rule from taking effect in the Sunflower State and in Alaska, Utah, and Wyoming. In a stunning move that splits university systems in numerous states, Judge Broomes’ order also blocks the Final Rule from taking effect at hundreds of schools attended by any members of the association plaintiffs in that lawsuit. Judge Broomes determined that ED lacked the authority to expand prohibited sex-based discrimination to include discrimination based on gender identity. However, Judge Broomes expressly indicated that his order does prevent a school or college from adopting new policies. Most recently, the U.S. District Court for the Northern District of Texas issued an injunction stating that “[t]he Final Rule inverts the text, history and tradition of Title IX[,]” adding that the Final Rule “…inserts men into spaces reserved to women.” The Texas order also blocks other changes, including new protections for pregnant and parenting students. Texas officials have already instructed public colleges and K-12 schools not to comply with the Final Rule. With Texas, there are now 15 states with temporary injunctions blocking the Final Rule from going into effect on August 1, 2024. The 15 states with temporary blocks are: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia, Wyoming, and Texas, and a list of the schools affected by Judge Broomes’ expansive order is accessible via this link.

On July 22, 2024, the Solicitor General submitted applications to the U.S. Supreme Court seeking partial stays on injunctions from the Western District of Louisiana and the Eastern District of Kentucky. Interestingly, these applications were filed after similar requests had been denied by both the Fifth and Sixth Circuit Courts of Appeal.

While this political debate continues, enforcement of the Final Rule will continue to become more complicated. On August 1, 2024, the Final Rule will go into effect in some states but not in others. Perhaps other cases and rulings will be issued prior to August 1. Although these are only temporary injunctions and not final rulings, each appeals court will address these matters at a different pace such that the implementation of the Final Rule will continue to look different in each federal district. In the meantime, educational institutions, Title IX administrators, and compliance officers in states that are not blocked must move forward with policy and training updates. In those states that have issued a temporary injunction, the best practice is to comply with the existing Title IX regulations, maintain contact with legal counsel, and be prepared to pivot and issue policy updates quickly in the event that the injunctions are overturned. --- Lisa M. Hawrot