On July 2, Judge John Broomes of the U.S. District Court for the District of Kansas handed down yet another preliminary injunction blocking the Title IX regulations issued in April, following on the heels of similar orders from federal judges in Kentucky and Louisiana. Among other provisions, these regulations specify that “sex discrimination” under Title IX includes discrimination on the basis of gender identity. The regulations were set to take effect on August 1; this decision postpones the effective date and blocks the administration’s ability to enforce the regulations in their entirety against the plaintiffs.

The plaintiff-states impacted by this latest decision include Alaska, Kansas, Utah, and Wyoming. In total, the regulations are now blocked in 14 states: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia, and Wyoming.

The claims made by plaintiffs in the Kansas lawsuit are similar to those in the other lawsuits, including arbitrary and capricious rulemaking, lack of statutory authority, and constitutional violations relating to free speech and separation of powers.

Scope of Injunction

Much of this new injunction is familiar—and is covered in previous alerts here and here—including Judge Broomes’ explicit refusal to extend the Supreme Court’s logic in Bostock v. Clayton County, 590 U.S. 644 (2020) from the Title VII context to Title IX. Judge Broomes also accepted plaintiffs’ arguments of arbitrary and capricious rulemaking and their claims of constitutional violations concerning the Spending Clause and freedom of speech. Other language in the order is new; specifically, Judge Broomes cited the Supreme Court’s recent decision, Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024), which overturned Chevron deference. Judge Broomes stated that, although he does not find the definition of sex to be ambiguous, the Department of Education would lack deference in its rulemaking “even if [the definition of sex] was ambiguous.”

The government has already responded to the two previously granted preliminary injunctions by appealing the decisions to the Courts of Appeals for the Fifth and Sixth Circuits, respectively, arguing that the injunctions are overbroad.  In these appeals, the government asks the courts to limit the scope of the injunctions to just the contested definition of “sex discrimination” as it relates to gender identity. Judge Broomes preemptively rejected these arguments in his recent order, stating that the “impermissible definition [of sex discrimination] permeates the entire rule and, as such, it is difficult to excise the remaining regulations without also eliminating those regulations that involve sex discrimination.”

Further, while the plaintiffs sought a nationwide ban, Judge Broomes chose to follow the lead of judges in the Kentucky and Louisiana cases and limited the injunction to the plaintiff states. Notably, however, Judge Broomes further granted the injunction as applied to plaintiffs who are members of national organizations, demonstrating a willingness to expand the applicability beyond state lines, although the court stopped short of issuing a nationwide injunction.

Actions from Other Plaintiffs and Ongoing Legal Developments

In response to this Kansas decision, plaintiffs in several of the other pending lawsuits have filed notices alerting the respective courts of the decision, likely in the hopes of expediting decisions in their own cases. Such notices have been filed in both the Alabama case (involving Alabama, Florida, Georgia, and South Carolina) and the Arkansas case (involving Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota). The judge in the Arkansas case has ordered a briefing on any impact of the Kansas decision.

In sum, three lawsuits have preliminary injunctions in place, and at least three others—filed in Alabama, Missouri, and Oklahoma—appear to be moving quickly. Meanwhile, the government has appealed the decisions in the Kentucky and Louisiana cases to the U.S. Courts of Appeal. We will continue to monitor these cases.

This alert was prepared with substantial assistance from Bass, Berry & Sims summer associates Laura Collins and Ben Peterson.