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The Biden administration has asked the U.S. Supreme Court to partially lift a district court’s injunction that is preventing the Education Department from enforcing its new Title IX rule in six states.
Solicitor General Elizabeth Prelogar argued in a brief to the court that the district judge erred by blocking the entire rule from taking effect in Indiana, Kentucky, Ohio, Tennessee, Virginia and West Virginia when only some provisions were challenged in the states’ lawsuit. The Biden administration appealed to the U.S. Court of Appeals of the Sixth Circuit, which declined to lift the temporary injunction.
The provisions at issue in the lawsuit strengthen protections for LBGTQ+ students in part by clarifying that sex-based discrimination prohibited under Title IX includes discrimination based on sexual orientation or gender identity. Under the final regulations, transgender students are able to use the bathroom that aligns with their gender identity without fear of discipline—a point of contention for the plaintiffs. Additionally, referring to a student with the wrong pronouns could violate Title IX if the conduct is so “sufficiently severe or pervasive” that it prevents them from participating in or benefiting from an educational program or activity.
Prelogar wrote that the challenged provisions “raise important issues that will be litigated on appeal.” While the litigation continues, she wants the Supreme Court to allow the rest of the rule to take effect. The Title IX rule creates new protections for pregnant and parenting students, makes it easier for students to report sexual harassment, and requires colleges to take prompt and effective action in responding to those reports, among other changes.
The injunction in this lawsuit is one of several issued in recent weeks. Twenty-six Republican attorneys general have challenged the regulations, which are now blocked in 15 states and at hundreds of colleges nationwide. Critics of the Biden administration’s Title IX rewrite have said they planned to take their legal fight all the way to the Supreme Court. This is the first case concerning the new Title IX regulations to reach the high court.
Prelogar argued that a “partial stay would inflict no cognizable injury on respondents,” while the injunction inflicts harm because the department can’t enforce a “vital civil rights law.”
“If the court does not grant the requested stay, the department will be unable to vindicate the critical protections of that statute in a wide swath of the country because of an overbroad injunction that reaches regulatory provisions that respondents have not challenged or for which they have not shown harm,” she wrote.
The states’ response is due by Friday.
