Supreme Court blocks Biden administration’s new Title IX rules

In a 5-4 vote, in which conservative Justice Neil Gorsuch joined three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanja Brown Jackson, in dissent, the Supreme Court upheld control of the new sex discrimination rules in education. The ruling rejected the Biden administration’s challenge and affects about half the states. The court’s decision effectively rejected the Biden administration’s emergency request to partially reinstate the new Title IX rule.

Changes to Title IX, which protects against sex discrimination in schools, now include sexual orientation and gender identity for the first time. Republican state attorneys general in about half the states have forced judges to block implementation of the Biden-Harris law.

The rules went into effect Aug. 1 at other U.S. schools and colleges. The court’s decision is a blow to the Biden administration’s ongoing efforts to protect transgender inclusion.

The Supreme Court has refused to allow the Biden administration to enforce parts of a new rule that includes non-discrimination protections for transgender students under Title IX until the lawsuit is resolved.

“By blocking the government from enforcing dozens of provisions that respondents never challenged and that bear no apparent relationship to respondents’ alleged harm, the lower courts exceeded their authority to redress the individual harms at issue here,” Sotomayor wrote.

The decision is not final in the numerous lawsuits challenging the new Title IX rules. The cases will now return to lower appellate courts, although they could end up back at the Supreme Court.

Two separate federal court orders in Kentucky and Louisiana that blocked the Department of Education from enforcing the entire rule in 10 states were left in place by a court order. The Justice Department asked the Supreme Court to stay parts of the order, but the court denied all requests.

Under the order, four of the nine justices would allow parts of the law to go into effect, but all members of the court agreed that key contentious changes, including a new definition of “sex discrimination” to include “gender identity” and restrictions on same-sex spaces, could remain blocked.

“All members of the Court today held that plaintiffs were entitled to a preliminary injunction with respect to three provisions of the rule, including the central provision that redefines sex discrimination to include discrimination on the basis of sexual orientation and gender identity,” the Supreme Court said in its unsigned opinion.

The measure at issue was announced by the Biden administration in April and would extend Title IX protections to LGBTQ+ students. The landmark 50-year-old law prohibits educational entities receiving federal funding from discriminating on the basis of sex. The rule went into effect Aug. 1, but only in fewer than half the states. Federal judges have temporarily blocked it in 26 states.

The case is a series of disputes involving two groups of states challenging three different provisions of the rule: the first holds that Title IX’s prohibition on sex discrimination includes gender identity; the second expands the definition of “hostile environment harassment” to include harassment based on gender identity; and the third clarifies that a school violates Title IX when it prohibits transgender students from using restrooms and other facilities consistent with their gender identity.

One case was brought by four states: Louisiana, Mississippi, Montana, and Idaho, as well as the Louisiana Department of Education. The other case was brought by six states: Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. In June, federal district courts in Louisiana and Kentucky found that the states were likely to succeed in their cases and blocked enforcement of the entire rule in the 10 states involved in the case.

The Supreme Court, in response to the Biden administration’s argument that the three provisions should be severed, allowing other unchallenged parts of the provision to go into effect, agreed with the lower courts that “the new definition of sex discrimination is interrelated with and affects many other provisions of the new provision” and that the three provisions are therefore “not readily severable from the remaining provisions.” It found that the government failed to provide “a sufficient basis to preempt the lower courts’ interlocutory conclusions” and failed to “adequately identify which specific provisions, if any, are sufficiently independent of the mandated defining provision and thus may remain in effect.”

Justice Sonia Sotomayor, joined by Kagan, Jackson, and Gorsuch, wrote in her partial dissent, “By blocking the government from enforcing dozens of provisions that respondents never challenged and that bear no apparent relationship to respondents’ alleged harm, the lower courts have exceeded their authority to redress the particular harms at issue here.” She predicted that “the injunctions left by this Court will burden the government more than necessary.”

In seeking immediate relief from the Supreme Court, the Justice Department argued that the district court’s injunctions were “grossly overbroad” because they blocked “dozens” of provisions of the regulations that had not been challenged by the states, and therefore the lower court had not found them to be likely illegal.

“The district court’s injunction would prevent the department from implementing dozens of provisions of an important rule implementing Title IX, a key civil rights law that protects millions of students from sex discrimination,” Attorney General Elizabeth Prelogar wrote in both filings.

“The harm here is particularly acute because Title IX is a core federal civil rights statute that guarantees nondiscrimination in the nation’s education system,” Prelogar wrote. “If the court does not grant the requested stay, the department will be unable to defend the statute’s key protections across a broad swath of the country.”

But in response to Louisiana’s challenge by four states, Republican attorneys general said in a letter filed with the Supreme Court that the Biden administration’s rules “will have a dramatic impact on schools, teachers, and families.”

They argued that the Department of Education took Title IX and its “promise of equal educational opportunity for both sexes and turned it into a 423-page order” that requires covered entities to allow male students to use restrooms, locker rooms and other facilities designated for girls, and for teachers and students to use transgender people’s preferred pronouns.

“The Department cannot seriously deny that a partial stay of proceedings would create widespread confusion. Teachers would have at most a few days before the start of the school year to understand their obligations under a court rule that is written in blue,” the Republican attorneys general wrote. “And this uncertainty and harm would affect parents and students equally.”

They said there was uncertainty about how the virtually locked-down rule, which would prevent parents from deciding whether to send their children to public school, would work.

In a separate filing in the Kentucky case, officials from six states accused the Biden administration of forcing schools to spend “vast sums” to comply with the new rule in just three months.

They warned the court “not to create last-minute havoc — and unnecessary waste of precious resources — among schools, students and sovereign states.”

In addition to the Louisiana and Kentucky cases, a number of other challenges to the Biden administration’s Title IX rules are pending in lower courts.

The Education Department’s Title IX changes are a response to a slew of laws and policies in GOP-led states that have dramatically affected transgender youth. More than 20 states restrict the use of treatments such as puberty blockers, hormone therapy or surgeries for transgender minors. The Supreme Court is set to rule on the constitutionality of one of those laws in Tennessee on next season’s bench.

At least 11 states have laws banning transgender people from using restrooms and other facilities that align with their gender identity in schools, and 25 states ban transgender girls from competing on their schools’ girls sports teams.

OutKick host Riley Gaines, a former collegiate swimmer turned advocate against transgender women and girls in women’s sports, supported the ruling on her podcast, “Gaines for Girls with Riley Gaines.”

Gaines said, “Not all Supreme Court justices know what a woman is, but enough did today, and that’s a victory worth celebrating. It’s a victory for women, for free speech, for the rule of law, for common sense. Forward.”