The Biden administration’s new Title IX rule, which explicitly prohibits discrimination based on sexual orientation and gender identity in schools, won’t go into effect in four states in August after a federal judge temporarily blocked it.
The June 13 preliminary injunction applies to Idaho, Louisiana, Mississippi, and Montana and is the first legal blow to the U.S. Department of Education’s April rewrite of Title IX regulations. The Education Department has said schools must comply with the revised rule by Aug. 1, but at least seven lawsuits involving 26 states aim to prevent it from taking effect. The legal challenges take issue with the department’s attempt to include gender identity in the regulation’s definition of “sex-based discrimination.”
The order adds to the growing confusion surrounding Title IX, forcing schools in states whose leadership opposes the revision to choose whether to follow state directives or federal regulation when accommodating transgender and nonbinary students and staff. And it creates a legal landscape in which the new regulation will, at least temporarily, apply in some parts of the country and not others.
In the order, Louisiana Judge Terry Doughty, an appointee of former President Donald Trump, said the Education Department’s interpretation of Title IX would “subvert the original purpose of Title IX: protecting biological females from discrimination.”
“Title IX was written and intended to protect biological women from discrimination,” Doughty wrote. “Such purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”
In a statement on Friday, an Education Department spokesperson said the agency was reviewing the ruling and defended the basis for the Title IX revision.
“Title IX guarantees that no person experiences sex discrimination in a federally-funded educational environment,” the statement said. “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.”
The order came two days after another federal judge in Texas struck down three-year-old Education Department guidance, which said the agency would use Title IX to protect students from discrimination based on sexual orientation and gender identity. That ruling had no official impact on the revised Title IX rule, but the judge who wrote it arrived at many of the same conclusions Doughty did in his order.
The scope of Title IX is a long-running and divisive debate
The Education Department has relied on the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, Ga., in which the court found that federal employment law prohibits employers from discriminating against employees on the basis of sexuality or gender identity, to bolster its revision to Title IX.
But Doughty argues that the Bostock ruling cannot apply to Title IX because “the purpose of Title VII [the federal anti-discrimination employment law] to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.”
Under the revised rule, the Education Department said that schools must investigate harassment that is considered “severe” or “pervasive,” which is a change from the Trump-era rule requiring schools to only investigate harassment claims that are considered both “severe” and “pervasive.” The change broadens the scope of incidents that are considered harassment.
In the order, Doughty said the change to the harassment standard “allows for one political ideology to dominate the educational landscape while either silencing the other or calling the other ‘harassment’ under these standards.”
What the federal order on Title IX means for schools
Doughty’s order only applies to schools in states that participated in the lawsuit—Idaho, Louisiana, Mississippi, and Montana—and is temporary, meaning it’s not an official ruling on the Title IX rule revision.
The preliminary injunction order blocks the rule from taking effect while the lawsuit fully plays out. In the order, Doughty said he believes the states suing the Education Department would be able to win in their legal challenge because they have demonstrated that the Title IX rule contradicts federal law.
Twenty-six Republican-led states have filed lawsuits against the Education Department in opposition to the rule. There will likely be more orders temporarily blocking the rule from taking effect in states involved in lawsuits as conservative judges evaluate the cases.
However, Democratic state leaders have weighed in in support of the Biden administration’s rule. Sixteen Democratic attorneys general filed a multistate amicus brief Thursday supporting the rule in a challenge led by Alabama. Schools in those states, including California, New Jersey, and Pennsylvania, are less likely to see an injunction halting the rule’s implementation for them, as their states aren’t challenging the new rule in court.
While schools should not violate the court order by implementing the Title IX rule when there is an injunction, they should be prepared for the temporary order to be overturned, Title IX compliance lawyers have told Education Week. That means they should consult with local lawyers, set up the district infrastructure to comply with the revised rule, and keep up to date with court developments.
