You have /5 articles left.
Sign up for a free account or log in.
Photo illustration by Justin Morrison/Inside Higher Ed
Federal judges in Louisiana and Kentucky in recent weeks have taken the Biden administration to task for its rule overhauling Title IX in opinions that offer hints into whether the final regulations can withstand a torrent of legal scrutiny. Those initial hints don’t seem to bode well for those who support expanded protections under Title IX of the Education Amendments of 1972, though legal scholars caution from reading too much into the orders at this point in the legal process.
One judge said that the rule “wreaks havoc” on the 52-year-old gender equity law and would “derail deeply rooted law.” The other called the final regulations, which are slated to take effect Aug. 1, an “abuse of power.”
Two judges have so far temporarily blocked the regulations in 10 states—Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia and West Virginia. Motions for preliminary injunctions have been filed in at least four other lawsuits challenging the Title IX changes, with decisions expected in the coming weeks. Over all, 26 state attorneys general, all Republicans, are challenging the regulations.
The legal challenges primarily take aim at protections for LGBTQ+ students in the new Title IX rule, which was finalized in April. However, the injunctions thus far block every aspect of the new regulations, including new protections for pregnant and parenting students and changes to how colleges must respond to reports of sexual misconduct.
The injunctions are just the start of what will likely be a protracted legal fight over who exactly is protected under Title IX that could very well end at the Supreme Court. Yet getting before the Supreme Court is not a certainty and depends on several factors, including the justices’ willingness to take on the issue of Title IX and transgender rights and the outcome of the November election. A Trump victory could render the challenges moot.
In a possible signal of their appetite for such cases, the Supreme Court decided Monday to take up a lawsuit from the Biden administration challenging state bans on gender-affirming care. Arguments in that case will be held during its next term, with a decision likely next summer.
At the heart of the Title IX lawsuits is what constitutes sex-based discrimination and who gets to decide that—the states or the federal government. The new rule clarified that sex-based discrimination, which is barred under Title IX, includes discrimination based on sexual orientation or gender identity, and it expanded the definition of what’s considered harassment.
Opponents of the rule say that in bolstering protections for LGBTQ+ students, the Biden administration is undermining the original intent of the statute. They’ve argued that the changes could put cisgender women and girls at risk, in part by allowing transgender students to use bathrooms and locker rooms consistent with their gender identity. Backers say their concerns are unfounded and the protections are in line with previous federal court decisions—and they are needed to protect a group of students whose civil rights are increasingly under attack at the state level.
An injunction at this point is not a ruling on the merits of the plaintiffs’ arguments; it maintains the status quo prior to the new rule while the lawsuits continue. In seeking a stay, the states have argued that they would be irreparably harmed if they had to comply with the Title IX rule, citing the potential costs for colleges, universities and K-12 schools to update their various policies. The injunctions could be reversed by a higher court at any time, so colleges should still be working to update their policies so they can be in compliance.
This week, the Biden administration filed notice that it was appealing the Louisiana injunction to the U.S. Court of Appeals for the Fifth Circuit and the Tennessee injunction to the U.S. Court of Appeals for the Sixth Circuit. If either appeals court upholds the injunction, the administration can ask the Supreme Court to reverse the order.
“Title IX guarantees that no person experience sex discrimination in a federally funded educational environment,” an Education Department spokesperson told Inside Higher Ed. “The department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee. The department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.”
Behind the Legal Battle Over LGBTQ+ Rights
This round of lawsuits is part of a broader legal and cultural fight over transgender rights and the meaning of Title IX. Lawyers and legal scholars focused on gender equity and LGBTQ+ rights argue that those rights, and the others expanded by the Biden administration, already are implicit in the law—and it’s conservatives who want to change it by narrowing it.
“The text of Title IX itself is clear, and the new rule just amplifies that survivors of sexual harassment, pregnant and parenting students, LGBTQ+ students have strong and comprehensive protections against discrimination in school,” said Kara Ingelhart, a law professor and director of the LGBTQI+ rights clinic at Northwestern University. “In the years since its passage, opponents have really not stopped at trying to weaken those kinds of civil rights protections.”
The Obama administration released guidance in 2014 and 2016 to specify that Title IX applied to discrimination based on gender identity, which helped transgender students access bathrooms, residence hall rooms and locker rooms consistent with their gender identity. The Trump administration later rescinded that guidance. Then in May 2020, the Trump administration released Title IX regulations that prohibited sexual harassment against any student but didn’t address discrimination on the basis of gender identity.
Shortly after the 2020 regulations were finalized, the Supreme Court issued a landmark decision in Bostock v. Clayton County that said LGBTQ+ individuals were protected from sexual orientation and gender identity discrimination in the workplace under Title VII of the Civil Rights Act of 1964, which prohibits sex-based discrimination.
The Trump administration initially said that Bostock didn’t apply to Title IX, but the Biden administration said in June 2021 that it did. The Education Department’s legal justification for the final regulations relies heavily on the Bostock decision.
“Title IX no more permits a school to bar a transgender student from band practice on the basis of the student being transgender than Title VII permits an employer to fire a transgender employee because the employee is transgender,” the administration wrote in court filings. (The district judges who issued the injunctions disagreed, saying in part that Bostock doesn’t apply to Title IX.)
Several experts point out that the judges’ orders conflict with previous rulings in other circuits that have said Title IX protects transgender students from discrimination, so they don’t think the regulations are dead in the water at this point.
“Our hope is that when and if this reaches the appellate courts, the courts will consider the rule of law and the reality that these attacks on LGBTQ+ students are not factual,” said Shiwali Patel, director of safe and inclusive schools for the National Women’s Law Center.
The judges’ rulings have inaccurately portrayed Title IX and overlooked the law’s broad mandate, Patel said.
“The decisions rely on inaccurate information, on stereotypes and disinformation about trans women and girls,” Patel said. “At the end of the day, the decisions fundamentally don’t recognize that women and girls who are trans are women and girls … That’s dangerous.”
Elana Redfield, federal policy director at the Williams Institute, a research center at the University of California, Los Angeles, focused on sexual orientation and gender identity law and public policy, said the orders were disappointing but not surprising. Opponents of trans inclusion, she said, have been working to establish a narrative that “sex only means biological sex is assigned at birth,” which is reflected in the lawsuits and the judges’ orders.
Beyond that, the rulings have emphasized the “needs and experiences of cisgender, straight students” without discussing the potential impact to LGBTQ+ students, Redfield said. The rulings, she noted, will likely mean “a lot of confusion and frustration” for this group of students.
“It is a pretty glaring lack of compassion that is demonstrated here alongside their articulation of their very conservative version of the law,” she said.
To the Supreme Court?
For now, the injunctions are welcome to the states challenging the regulations, though getting to the high court is their goal.
“This is the first major step in a legal battle over Title IX that will ultimately end right here at 1 First Street, and I look forward to continuing the fight,” said Montana solicitor general Christian Corrigan in front of the Supreme Court building at a press conference last week that was hosted by the Heritage Foundation, a conservative think tank.
Nobody knows which lawsuit might be the first to reach the Supreme Court, but Corrigan predicted that the legal fight could play out over the next six to 18 months, which would be fairly quickly for the federal court system.
“We’re going to get there quickly, “ he said. “I think this is a really important question that the Supreme Court needs to settle.”
To emphasize that point and bring attention to the lawsuits, Corrigan and other state officials from Florida, Louisiana, Montana and Wyoming gathered in the sweltering D.C. heat to outline a myriad of concerns with the new Title IX rule.
The Title IX changes “appease a pet policy agenda” and would have “devastating economic and noneconomic consequences,” said Sarah Parshall Perry, a senior legal fellow at Heritage. Manny Diaz Jr., the commissioner of education in Florida, said the Biden administration is “waging a war on women for the woke mob.”
“Under Joe Biden’s new Title IX directive, the term ‘sex’ will be expanded to include sex stereotypes, sex characteristics, sexual orientation and gender identity,” Diaz said. “This completely disregards the biological differences between males and females that was so clearly understood in 1972 and is the truth.”
Diaz and other speakers argued that the rule could impact athletic opportunities for women and girls, arguing it would take away spots on teams and scholarships. The rule itself doesn’t directly concern transgender students’ participation in athletics, though Republican officials and conservative critics have said the discrimination definition and other changes would prevent some sex-separated sports. The Biden administration disputes this, pointing to the fact it’s working on a separate proposal related to athletics and Title IX.
For other speakers, including Corrigan and Louisiana superintendent Cade Brumley, the rule is just plain unlawful. They say it goes against what Congress intended when it passed Title IX and exceeds the department’s authority.
“I stand today in opposition to a federal government determined to hijack rights, endanger children and dismantle long-standing protections for women and girls,” Brumley said. “Make no mistake, these Title IX changes are a misguided pursuit to shift America from levelheaded policies to absurdity.”
Their comments largely reflect the arguments laid out in the seven lawsuits from 26 states challenging the rule. The Republican attorneys general have generally argued that the Biden administration department acted “arbitrarily and capriciously” when it adopted the final rule. Some states have claimed that the rule’s broader harassment definition also could infringe on the First Amendment rights of employees and others, because using the wrong pronouns for a student could be considered harassment under the rule. Other provisions, such as those allowing transgender students to use the bathroom or locker room consistent with their gender identity, conflict with state laws. Thus, complying with Title IX could undermine state sovereignty, the lawsuits have argued.
Louisiana attorney general Liz Murrill said at the press conference that she was grateful to have obtained the first injunction against the Title IX rule.
“I expect many more to follow,” she said. “I think what’s unfortunate is that there will be a number of states who remain unprotected.”
She ended her comments encouraging individuals in states that aren’t suing—those mostly led by Democrats—to reach out to conservative legal organizations such as Alliance Defending Freedom so “they can obtain the same protections that their leaders in those states refused to provide.”
