Preliminary injunctions prevent enforcement of new Title IX

On July 2 and July 11, 2024, two additional federal courts issued temporary injunctions preventing enforcement of the U.S. Department of Education’s new Title IX regulations scheduled to take effect on August 1, 2024.

Quick Hits

• Federal district courts in Kansas and Texas have issued preliminary injunctions blocking enforcement of the U.S. Department of Education’s new Title IX regulations against the states of Alaska, Kansas, Texas, Utah, and Wyoming.
• The courts have held that the Department of Education does not have the authority to interpret Title IX’s prohibition on sex discrimination to include discrimination on the basis of sexual orientation and gender identity.
• The Department of Education can no longer enforce new Title IX rules in fifteen states and hundreds of schools, colleges and universities outside those states.

Joining courts in Kentucky and Louisiana, the U.S. District Court for the District of Kansas issued a preliminary injunction on July 2, 2024, directing the Department of Education to refrain from taking any action to enforce the final rule titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” against the states of Alaska, Kansas, Utah, and Wyoming and various schools attended by children of members of the organizations that participated as plaintiffs. The Department of Education filed an appeal of the Kansas court’s preliminary injunction in the U.S. Court of Appeals for the Tenth Circuit on July 10, 2024.

On July 11, 2024, the United States District Court for the Northern District of Texas issued a preliminary injunction prohibiting the Department of Education from taking any action to enforce the rule against the State of Texas and the individual plaintiff organizations. In addition to using similar reasoning to the Kentucky and Louisiana courts, the Texas court found that the State of Texas and its political subdivisions are on a “collision course” with the 2024 rule because Texas law prohibits student-athletes from participating in competitions “designed for the sex opposite the student’s biological sex.” The Texas court’s ruling came as little surprise, given that the same court had issued a permanent injunction on June 11, 2024, vacating and barring enforcement of the Department of Education’s 2021 interpretation (updated July 15, 2022 and June 11, 2024) (by which the Department sought to “clarify (its) enforcement authority with respect to sexual orientation discrimination and gender identity discrimination under Title IX … in light of the Supreme Court’s decision in Bostock vs. Clayton County”); the Dear Educator Letter issued by the Department on the forty-ninth anniversary of the enactment of Title IX; and its fact sheet entitled “Confronting Anti-LGBTQI+ Harassment in Schools.” These fact sheets were a precursor to Rule 2024, which interpreted the prohibition on sex discrimination in Title IX to include discrimination on the basis of sexual orientation and gender identity.

The basis for the decisions in Kansas and Texas was essentially the same as the basis for the decisions in Louisiana and Kentucky. All decisions were based on the finding that the Department lacked authority to interpret Title IX’s prohibition on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. However, neither court limited its preliminary injunction to this one aspect of the 2024 Rule. The language of each preliminary injunction prohibits enforcement of the 2024 Rule as a whole, effectively halting enforcement of all of the procedural changes to Title IX that we detailed in Ogletree’s four-part analysis of the 2024 regulations. The Department of Education asked the United States Courts of Appeals for the Fifth and Sixth Circuits to stay the injunctions with respect to the non-gender identity portions of the 2024 Rule. Both courts denied the motion, temporarily leaving in effect the injunctions with respect to the entire 2024 rule.

Educational institutions should be aware that these orders are preliminary injunctions only and do not become final until each case is finally resolved. Preliminary injunctions are effective only during the pendency of the lawsuits. A preliminary injunction may become permanent or may be terminated after each case is concluded.

Countries and institutions covered by the orders

So far, courts have issued preliminary injunctions barring the Department of Education from enforcing the 2024 regulations against the following fifteen states:

Alaska	ohio
Idaho	Tennessee
Indiana	Texas
Kansas	Utah
Kentucky	Virginia
Louisiana	West Virginia
Mississippi	Wyoming
Montana

Another case challenging the 2024 Title IX Rule is pending in the U.S. District Court for the Northern District of Alabama. The states that brought the case are Alabama, Florida, Georgia, and South Carolina. The court heard oral arguments on July 1, 2024, and a decision is expected soon.

Most of the district court orders are limited to barring the application of Rule 2024 to the states that brought the lawsuits. However, the orders do not specifically prohibit enforcement of Rule 2024 against all nonstate educational institutions in the plaintiff states. Louisiana’s preliminary injunction is somewhat ambiguous, stating that it is “limited to the States of Louisiana, Mississippi, Montana, and Idaho,” which could be read as applying the injunction in these states and not just to those plaintiff states as parties. Private educational institutions in all fifteen affected states should not count on the Department of Education to refrain from attempting to enforce the 2024 Rule against nonstate actors in those states, at least until after each case has been finally adjudicated.

The Kansas order, however, could apply to institutions in any state. It prohibits enforcement of the 2024 Rule against colleges and universities attended by members of the plaintiffs’ organizations, Young America’s Foundation and Female Athletes United. The list of institutions attended by members includes 688 public and private colleges and universities located in virtually every state in the United States. (The lists of affected institutions are included in a July 15, 2024, filing by the plaintiffs’ organizations in State of Kansas vs. U.S. Department of EducationCase number 24-4041-JWB, Document 67.)

The Kansas order also covers schools attended by members (and children of members) of the plaintiff Moms for Liberty, Inc., which reportedly has 300 local chapters and 130,000 members nationwide. The Kansas order could therefore extend far beyond the borders of the states that served as plaintiffs in the case.

Key conclusions

For now, the courts that ruled in these cases have ordered the U.S. Department of Education to refrain from implementing or enforcing the final rule that redefines sex discrimination under Title IX to include gender identity. For institutions covered by the preliminary injunctions, this means that the understanding of “sex” based on the biological differences between men and women—which is described in the 2020 regulations—remains in effect. Because the Department has now been restrained from implementing or otherwise enforcing the final rule in fifteen states, with four more likely to follow soon, the ultimate fate and applicability of the final rule remain uncertain.

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