The U.S. Supreme Court on Friday denied a request by the Biden administration to partially curb injunctions that are blocking its new Title IX regulation in 26 states and at least some schools in every other state.
In an unsigned opinion, the court said that U.S. Solicitor General Elizabeth B. Prelogar had failed to show that the bulk of the new regulation could be separated from three challenged provisions that newly define sex discrimination to cover sexual orientation and gender identity.
“On this limited record and in its emergency applications, the government has not provided this court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule,” the court said in its short opinion in Department of Education v. Louisiana and Cardona v. Tennessee.
All nine members of the court agreed that the states and other challengers of the regulation were at least procedurally entitled to preliminary injunctions blocking the three key provisions, which include a definition of sex discrimination that includes gender identity.
However, four members of the court dissented over blocking the entire rule.
“Those injunctions are overbroad,” Justice Sonia Sotomayor wrote in the partial dissent, joined by Justices Elena Kagan, Neil M. Gorsuch, and Ketanji Brown Jackson. “By blocking the government from enforcing scores of regulations that [states and others] never challenged and that bear no apparent relationship to [challengers’] alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here.”
New Title IX rules are blocked in 26 states and at individual schools in all others
The Supreme Court mulled the emergency requests for almost four weeks, and well beyond the Aug. 1 effective date of the new regulation interpreting Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in federally funded educational programs.
The court’s Aug. 16 action still leaves a confusing and disjointed map where the regulation—which for the first time explicitly protects LGBTQ+ students from discrimination—is in effect.
The emergency requests covered injunctions by two courts that completely blocked the new rule from taking effect in 10 states. Other courts have issued similar injunctions blocking the entire rule in an additional 16 states, and the Supreme Court’s decision will presumably keep those other injunctions in place.
One such injunction that wasn’t specifically before the high court, issued by a federal judge in Kansas, blocks the regulation in four states but is also in force at any school across the nation attended by the members of three groups that joined the challenge—Moms for Liberty, Young America’s Foundation, and Female Athletes United. Those lists include schools in all 24 states not covered by a statewide injunction.
That injunction significantly expands the geographic scope of where the new Title IX regulation is blocked. And the list of schools subject to that injunction is growing and includes at least a few schools in every state plus the District of Columbia. The Kansas judge has allowed those groups to recruit new members and add their children’s schools to the list.
There was no immediate reaction from the Biden administration, but U.S. Secretary of Education Miguel Cardona on Aug. 1 told stakeholders in a webinar that he “loudly and unapologetically” rejects the “politicization” of the regulation.
Prelogar in July asked the high court to allow most of the Title IX rule to take effect on Aug. 1, even as the Biden administration went along with pausing some challenged provisions that touch on gender-identity discrimination.
The Education Department regulation clarifies for the first time that Title IX protects students based on sexual orientation and gender identity. It also expands protections for pregnant and postpartum students, offers stronger language about retaliation, and sets out new grievance and due process procedures.
“Most of the rule does not address gender identity,” Prelogar said, citing the other provisions.
The solicitor general told the court the administration was OK, for now, with allowing the injunctions to block two provisions that deal with gender identity while it continues to fight them in appeals courts. One of those deals with restrooms, locker rooms, and other sex-separated spaces in education, making clear that transgender students may use restrooms, for example, that align with their gender identity. The other provision Prelogar was fine with leaving blocked clarifies that “hostile-environment harassment” in schools would cover gender identity.
But Prelogar did seek to halt the injunctions with respect to the broad new definition of sex discrimination to include gender identity.
Supreme Court notes lower courts are moving ahead on merits of Title IX lawsuits
The states and others challenging the new regulation argued that the new definition pervades the entire new regulation and provisions could not be easily separated into what could take effect and what could not.
“The states challenged the whole rule” and “are injured by the whole rule,” the state of Tennessee said in a Supreme Court filing.
On those points, the Supreme Court majority appeared to agree.
“The government [has not] adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect,” the majority said in its unsigned opinion.
The majority noted that the 6th Circuit has expedited its consideration of the merits arguments in the Tennessee-led case and has scheduled oral arguments for October.
“The court expects that the Courts of Appeals will render their decisions with appropriate dispatch,” the Supreme Court opinion states.
In her nine-page dissent, Sotomayor outlined the significance of some of the provisions the solicitor general sought to make effective now, including the pregnancy and retaliation provisions and language that bars schools from “from making a preemployment inquiry as to an applicant’s marital status and limits the circumstances under which a school may make a preemployment inquiry as to an applicant’s sex.”
“At this juncture,” Sotomayor said, “enjoining the application of any other part of the rule needlessly impairs the government from enforcing Title IX and deprives potential claimants of protections against forms of sex discrimination not at issue in [the challengers’] suit.”
