Federal court blocks new Title IX laws in 14 states

Overview of the most important events

U.S. District Court for the District of Kansas Issues Injunction Blocking U.S. Department of Education’s New Title IX Rule

New Title IX laws blocked in 14 states, with more injunctions likely

The Education Department also cannot enforce the new rule at schools attended by members of some of the plaintiffs’ organizations — a move that could impact schools in all 50 states.

The U.S. District Court for the District of Kansas has become the latest federal district court to issue an injunction blocking the Department of Education’s 2024 final regulation implementing Title IX sexual misconduct provisions, which is set to take effect on August 1, 2024. The Kansas order blocks implementation of the final regulation in Alaska, Kansas, Utah, and Wyoming, complementing earlier injunctions issued by the Eastern District of Kentucky and the Western District of Louisiana covering Indiana, Kentucky, Ohio, Tennessee, Virginia, West Virginia, Louisiana, Idaho, Mississippi, and Montana.

Additional litigation regarding the final rule remains pending in at least four other federal district courts. The Kansas decision is much broader in scope than the previous injunctions and could apply to schools and institutions in all 50 states because the injunction also covers members of the plaintiffs’ organizations involved in State of Kansas vs. U.S. Department of Education.

3 most important conclusions

1. This order shall apply to institutions not located in the plaintiff’s states of Alaska, Kansas, Utah, and Wyoming.

Unlike the cases heard in federal courts in Kentucky and Louisiana, the plaintiffs in State of Kansas vs. U.S. Department of Education include three private organizations. While the Kansas decision does not reach a nationwide injunction, it does grant a preliminary injunction against each of those organizations, meaning the Final Rule is blocked at “schools attended by members of Young America’s Foundation or Female Athletes United, as well as schools attended by children of Moms for Liberty members.” The Kansas court ordered the plaintiff organizations to file a notice by July 15, 2024, identifying the schools attended by the member or a member’s child.

2. This order will significantly impede the Department of Education’s ability to implement the final 2024 regulations.

Schools attended by even one member or a member’s child (in the case of Moms for Liberty) would be subject to an injunction prohibiting the application of the final rule, potentially extending the ruling nationwide. As a result, the ruling could require extensive enforcement action by the Department of Education to navigate the set of individual schools and institutions covered by the order. It is unclear at this time how the Department will approach implementing the final rule in light of this challenge.

3. This order sets out similar reasoning to that used in previous cases deciding this issue.

One of the key issues in this and other cases challenging the Final Rule is the definition of “sex” under Title IX. Title IX is a federal statute that prohibits discrimination on the basis of sex in any federally funded educational program or activity. In the Final Rule, the Biden administration’s Department of Education has defined “sex” to include gender identity. This is consistent with the U.S. Supreme Court ruling in Bostock vs. Clayton County, Georgiain which the Court adopted a broad definition of “sex” in the context of Title VII of the Civil Rights Act, prohibiting discrimination on the basis of sex in employment. In contrast, the Court in State of Kansas emphasized aspects of Title IX (as opposed to Title VII) that explicitly recognize binary, gender-separated concepts in educational environments (locker rooms, residential facilities, etc.).

Court in State of Kansas began his analysis by highlighting the recent decline Chevron deference, referring to the U.S. Supreme Court’s ruling that courts need not defer to a federal agency’s interpretation of a statute simply because the statute is ambiguous. Instead, courts must now exercise “independent judgment” to determine whether a particular action falls within the agency’s statutory authority. In that case, the Court held that Title IX was not ambiguous by expressly referring to discrimination based on sex, not gender identity. The Kansas court further held that the Final Rule raises a “substantive question” that the Department of Education has no authority to decide, namely, whether “sex discrimination” in education includes gender identity. The Court further held that the definition of “sex” under the statutory language of Title IX likely means only biological sex, rather than the more expansive concept of sex adopted by the Supreme Court in Boston under Title VII.

The court also found that the Final Rule raises concerns under the Spending Clause of the United States Constitution because it imposes conditions on the receipt of federal funds that the court found to be ambiguous; and the Final Rule raises concerns under the First Amendment because it raises the specter of scare speech. The court concluded its analysis by finding that the Department of Education acted arbitrarily in promulgating the Final Rule, which the court finds to be a “blatant departure from prior action without reasonable explanation” and which, the court finds, does not adequately address plaintiffs’ concerns.

What’s next?

There appears to be a case currently pending in the U.S. District Court for the Northern District of Alabama, Alabama State vs. Cardonawill result in the issuance of another injunction, this time prohibiting implementation of the Final Rule in at least Alabama, Georgia, South Carolina and Florida. See also Adams v. Sch. Bd. of St. Johns Cnty.57 F.4th 791 11th Cir. 2022. Federal courts in Texas and elsewhere are also likely to follow suit, raising the question of how quickly a nationwide injunction against the final rule will be issued. See also State of Tennessee v. Becerra2024 WL 3283887 (S.D. Miss. July 3, 2024) (issuing a nationwide injunction against enforcement of the Department of Health and Human Services’ amended Affordable Care Act regulations that included gender identity in the definition of “sex” based on the expanded definition under Title IX).

In the meantime, it is unclear how the Department of Education will attempt to implement the Final Rule following the Kansas ruling; that question will unfold when the plaintiffs in this case notify affected schools on July 15. Schools and institutions in states not yet affected by state-level orders should be aware of the possibility that they will be listed as covered by the order in this case.

The national enforcement landscape for the Department’s final rule is becoming less coherent by the day, but this order and others like it will be just the beginning of a protracted legal battle over the meaning of Title IX and the Department’s final rule. Institutions not subject to the order should be prepared to comply with the final rule by August 1, 2024.

On the other hand, institutions subject to a court order will still be required to comply with the 2020 Title IX regulations in effect before the adoption of the 2024 final regulations—unless and until an appeal results in the vacating of the existing court order.

The need to prepare for an uncertain future in the context of Title IX means institutions should:

• Monitor developments in ongoing cases closely, as outcomes could change quickly in terms of whether the 2020 or 2024 Title IX regulations will apply to your institution
• Assess their ability to utilize resources under state law to prepare for implementation of the final regulation
• Collaborate with Title IX offices and attorneys to adapt to changes quickly
• Effectively informing institutional stakeholders about the tight regulatory environment