On June 13, a judge in the Western District of Louisiana issued a preliminary injunction enjoining the enforcement of the new Title IX regulations in full in the states of Louisiana, Mississippi, Montana and Idaho. The plaintiffs in this case complained primarily of the new regulations’ definition of “sex-based discrimination” under Title IX to include discrimination based on gender identity and sexual orientation. The order, however, postpones the effective date of the new regulations in full, which were set to go into effect on August 1. This thinly-reasoned ruling came without a hearing and nine days after the Department of Education (Department) submitted its reply to the plaintiff states’ motion. The judge limited the injunction to the four plaintiff states explaining that it is appropriate for other similar motions “to be decided in their respective courts.”
The preliminary injunction will certainly be appealed to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit may, or may not, expedite the appeal in an attempt to issue a decision prior to the August 1 effective date of the new regulations.
In the almost two months since the Department issued the final Title IX regulations, there have been at least 10 lawsuits brought by states, public school districts and public interest groups challenging the regulations in whole or in part. Twenty-six states are party to these lawsuits, while another 15 states and the District of Columbia have filed amicus briefs in support of the Department. As campus leadership races to revise Title IX policies and conduct training to comply with the August 1 effective date, which of these other cases are proceeding quickly and what part(s) of the final regulations might be invalidated or delayed prior to August 1, if the plaintiffs are successful?
What parts of the regulation and Title IX are the lawsuits challenging?
Inclusion of gender identity in the definition of sex
A primary point of contention in these cases centers on the definition of sex in the context of Title IX and its prohibition on sex-based discrimination. The new regulations follow the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), in which the Court held Title VII’s prohibition of discrimination “because of sex” applied to employees fired due to their sexuality or gender identity. The Biden administration argues Title IX requires a similar reading; the states filing these recent lawsuits disagree. The district court in the Western District of Louisiana held that the reasoning in Bostock did not apply to Title IX due to the differences in the history of Title IX and Title VII.
Definition of sex-based harassment and process for adjudicating harassment claims
Some of these lawsuits also take issue with the effect of the new regulations on both the substantive and procedural aspects of sex-based harassment claims. For instance, some of the plaintiff-states argue the language of the rule expands the definition of harassment to an overly broad and unmanageable scope, thus arguing the new regulations should be rescinded entirely. The district court in the Western District of Louisiana held that the Department had exceeded its authority by defining sex discrimination in the regulations more broadly than the definition provided by the United States Supreme Court in Davis v. Monroe County, 526 U.S. 629 (1999), for the award of money damages in a private suit under Title IX.
Procedural components of Title IX proceedings
Some of these suits also object to the rollback of procedural components of Title IX investigations and increased discretion given to higher education institutions, such as whether to hold live hearings.
Athletics
Finally, plaintiffs in these cases argue the regulations sidestep the issue of athletics in its treatment of sex and gender identity. Plaintiffs express concern that the lack of guidance in this area leaves open too much discretion and invoke narratives that have proliferated recently in the media about transgender students and athletics. Although this concern does not comprise the bulk of the claims brought by the plaintiffs, the underlying anxiety about where athletics fit into the new rule permeates the complaints. The district court in the Western District of Louisiana echoes these concerns about the consequences of the new regulations should the Department never finalize the Title IX proposed regulations it has issued that pertain to athletics.
What are the plaintiffs asking of the courts?
While each of the cases varies a bit in form, there is significant overlap between arguments made and claims sought. Across the board, most of the lawsuits ask the court to:
- Postpone the effective date of the regulations. The regulations are currently set to go into effect on August 1, 2024.
- Declare the regulations unlawful. While arguments vary, many of the cases argue that the regulations are unconstitutional, are in violation of the Administrative Procedure Act, and run contrary to Title IX itself.
- Grant a preliminary and permanent injunction. The lawsuits seek injunctive relief, particularly to shield those in defiance of the regulations from losing federal funding and from subsequent enforcement actions.
Which cases are moving most quickly?
The decision from the Western District of Louisiana was somewhat of a surprise, given the lack of a hearing. Generally, we would expect courts to hold a hearing before issuing rulings in these cases. Three of these lawsuits have oral arguments scheduled relating to the motions for preliminary injunction. These cases include:
- State of Tennessee et al v. Cardona et al. On June 10, a Kentucky district court judge was the first in these related lawsuits to hear arguments on the plaintiffs’ motion for a preliminary injunction and request to postpone the effective date of the regulations. We expect a decision from this court relatively soon. The plaintiff-states in this case are Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.
- State of Kansas et al v. United States Department of Education et al. The court will hear oral arguments on the motion for preliminary injunction on June 20, 2024. The plaintiff-states in this case are Kansas, Alaska, Utah, and Wyoming.
- State of Alabama et al v. Cardona et al. The court will hear oral arguments on the motion for preliminary injunction on July 1, 2024. The plaintiff-states in this case are Alabama, Florida, Georgia, and South Carolina.
We will continue to monitor these cases.
This client alert was prepared with substantial assistance from Bass, Berry & Sims summer associates Laura Collins and Ben Peterson.
