Not long ago we wrote about the significant changes to Title IX's regulations in the Department of Education's final rule set to go into effect this year (the Final Rule). Primary and secondary schools and institutions of higher education (together, Schools) began preparing to comply with the Final Rule's effective date of August 1, 2024. Schools nationwide hastened to revamp policies and procedures and conduct compliance training efforts in advance of the upcoming school year. However, federal courts threw a (mostly expected) wrench into the works earlier this summer, sending the Final Rule and its requirements into murky waters for a majority of the country.
The Final Rule has been temporarily blocked by federal judges in 26 states. A District of Kansas ruling also blocked the Final Rule for more than 1,000 specific Schools, including in states that do not have an injunction in place. The Biden administration sought an emergency request from the United States Supreme Court to allow enforcement of portions of the Final Rule that have not been challenged by states. However, in a 5-4 ruling, the Supreme Court denied the Biden administration's request and upheld the temporary block on enforcement of the Final Rule while legal challenges continue to proceed through the lower federal courts. Although states challenged only certain portions of the Final Rule, the Supreme Court's majority declined to allow the Department of Education to enforce portions of the Final Rule that were unchallenged, deeming them "not readily severable" from the challenged portions. The challenged portions of the Final Rule are based on the inclusion of "gender identity" in the new regulations, which redefine the scope of gender discrimination under Title IX. More specifically, the challenges include that the Final Rule (i) recognizes Title IX prohibits discrimination on the basis of gender identity; (ii) amends the definition of hostile environment harassment to cover harassment based on gender identity; and (iii) deems it a violation of Title IX when Schools prevent students from using the restrooms, locker rooms, and other facilities consistent with their gender identity. The Supreme Court reasoned that these new parameters of sex discrimination are too intertwined with the rest of the Final Rule to allow other provisions to independently go into effect.
What are the ramifications of this injunction staying enforcement of the Final Rule? Aside from causing confusion for Schools as to what rules to follow and how to effectuate newly revised policies and procedures that align with the Final Rule, other provisions, including protections and accommodations for breastfeeding and pregnant students, also do not yet go into effect for many students across the country in light of the federal injunctions.
So what should Schools do? Schools should keep abreast of the general enforceability of the Final Rule as it moves through the courts, but it is important that they also understand the current legal landscape in their jurisdiction. It is important to note that the Final Rule does take effect in the 24 states that have no pending legal challenges. For the other 26 jurisdictions (and the more than 1,000 Schools referenced above), the 2020 Title IX rules will continue to be enforced, and Schools should be mindful of existing laws that may impact their newly revised policies. For example, several states have transgender bathroom bans in schools and/or prohibitions on transgender athletes competing on sports teams aligned with their gender identity. To the extent that any policies or procedures were revised to comply with the Final Rule but may be at odds with current state or local law, Schools should consult legal counsel to determine a plan for compliance. It is important to remember that, despite the uncertainty surrounding the Final Rule, Schools are still obligated to comply with Title IX and must ensure their administrators, faculty, and staff are aware of and understand their obligations, too.
We will continue to monitor the enforceability of the Final Rule.
