In a recent and far-reaching decision, a federal court struck down the Biden administration’s 2024 final rule, which sought to implement significant changes to Title IX’s regulations (the 2024 Final Rule). Schools and institutions of higher education (IHEs) have eagerly awaited a clear indication of which Title IX regulations they were expected to comply with—the 2024 Final Rule, the prior rule promulgated under the first Trump administration (the 2020 Final Rule), or a patchwork of the two. As we previously wrote, the 2024 Final Rule became effective in August 2024 but garnered significant legal challenges and had been temporarily blocked by federal judges in 26 states, causing two distinct regulatory schemes: one in which some IHEs adhered to the 2020 Final Rule and one where others adhered to the 2024 Final Rule.
In Tennessee v. Cardona, the U.S. District Court for the Eastern District of Kentucky clarified expectations for IHEs moving forward by striking down the 2024 Final Rule and reverting back to the former rule in its entirety.
More specifically, the court held that the Department of Education lacked the authority to expand the definition of Title IX to prohibit discrimination on the basis of gender identity. The court noted that, by including “gender identity” in the 2024 Final Rule, Title IX’s prevention of discrimination based on sex becomes “largely meaningless.” On the heels of Loper Bright (recapped here in 2024), which overturned the long-standing Chevron doctrine that required courts to defer to agency interpretations of statutes, the court found that the Biden administration overstepped when it attempted to enforce its expanded interpretation of “sex” through agency rulemaking. The Biden administration argued for upholding the enforceability of the 2024 Final Rule by analogizing to the framework set out in Bostock, where the U.S. Supreme Court expanded the definition of discrimination “on the basis of sex” to include transgender status. While Bostock now provides federal protections for transgender faculty and staff under Title VII, the court relied on the plain text of the statute referring to “sex” to find no such protections extended to transgender students under Title IX.
The Court also found the 2024 Final Rule was “arbitrary and capricious” insofar as it created inconsistencies for when separation of sexes was permissible under Title IX (e.g., fraternity and sorority living facilities) and not permissible (e.g., use of bathroom facilities).
Even further, the Court also found that the 2024 Final Rule likely violated the First Amendment by potentially requiring the use of names and pronouns associated with individuals’ gender identity, which it said could chill speech or compel affirmance of a belief with which a speaker disagrees.
Although the Biden administration fought for enforcement of the Final Rule, the incoming Trump administration will not pick up the mantle in appealing the district court’s decision. Although we are now returning to the 2020 Final Rule, nonetheless we may still see the incoming administration swiftly make its own plans to promulgate a new rule for Title IX under the Department of Education’s anticipated leadership of Linda McMahon, President-Elect Trump’s former small business administrator from his prior term. Anticipated proposed changes to Title IX regulations could include definitions revised to specify only two genders and sexes, and limiting the ability of transgender athletes to participate on sports teams that reflect their gender identity.
Recommendations for Next Steps
As a result of the court’s recent decision, the 2024 Final Rule is “off the books” because the court found the challenged provisions are too interwoven to be extricated from the rest of the 2024 Final Rule. IHEs should begin preparing to re-implement Title IX policies that comply with the 2020 Final Rule, which now applies nationwide. If IHEs have implemented new policies and procedures in response to the 2024 Final Rule, it’s time to revert and promptly take the following steps:
- Revise Title IX policies and procedures to comply with the 2020 Final Rule
- Ensure all other materials (e.g., publications, handbooks, websites) are updated accordingly
- Train faculty, staff, and students on policies and procedures that comply with the 2020 Final Rule and its application to their work or studies
