In the past week, two U.S. District Court judges have issued preliminary injunctions halting implementation of the recently-released 2024 Title IX final rule.

Title IX administrators in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia should plan to begin the 2024-2025 academic year under the 2020 Title IX regulations (but should continue assessing the 2024 changes and be prepared to implement them effectively if the injunction is overturned). Administrators in the 16 states which have sued to enjoin the regulations but which have not yet received judicial rulings should carefully monitor litigation impacting their respective states and stakeholders across the 24 states which have not challenged the 2024 final rule should continue with diligent policy revisions and training updates to comply with the proposed final rule.

Litigation Update

On June 13, 2024, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana issued a 40-page judicial order enjoining the proposed 2024 Title IX final rule in its entirety in Louisiana, Mississippi, Montana, and Idaho. Judge Doughty’s order prevents the U.S. Department of Education, its Office for Civil Rights, the U.S. Department of Justice, and those entities’ employees from "implementing, enacting, enforcing, and taking action in any manner to enforce" the proposed regulations, which were set to go into effect nationwide on August 1.

Just a few short days later, the Title IX regulations were dealt another blow in the form of a second preliminary injunction ordered by Chief Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky. That injunction, ordered on June 17, prohibits implementation of the proposed final rule by education institutions in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.

Both injunctions will very likely be appealed to their respective U.S. Courts of Appeals. Given the ever-ticking countdown clock until proposed implementation of the regulations on August 1, Courts of Appeals (and perhaps even the U.S. Supreme Court) may or may not expedite appellate proceedings in order to reach decisions before the start of the 2024-2025 academic year. In the event of an injunction in your state, the 2020 Title IX regulations under which your institution has been operating for the past four years remain in effect; you may not implement the changes contemplated by the 2024 final rule. Schools should work closely with their legal departments and Title IX staff this summer to determine next steps with respect to training obligations, policy revisions, and implementation strategies amidst an ever-changing legal and regulatory landscape.

Title IX Preliminary Injunctions: The Basics

Both injunctions — blocking the 2024 final rule in a combined 10 states — were predicated on the Department of Education’s expansion of the scope of Title IX’s bedrock principle: prohibition of discrimination on the basis of sex. The 2024 final rule explicitly states: "Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity." The inclusion of, in particular, sexual orientation and gender identity formed the basis for nearly a dozen lawsuits filed by states, advocacy groups, and individual students across the country. A summary of the current status of some of the remaining pending lawsuits follows this discussion.

In discussing the legislative intent of Title IX, Judge Doughty noted in his order that "the text of Title IX confirms that Title IX was intended to prevent biological women from being discriminated against in education in favor of biological men."

"Title IX lists several exemptions which use the language 'one sex' or ‘both sexes’ showing that the statute was referring to biological men and biological women, not gender identity, sexual orientation, sex stereotypes, or sex characteristics," the judge continued. "It is clear in the text of Title IX itself, and in the decades-long impact of Title IX, that its enactment was created to apply to two sexes. There is nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/or women."

Similarly, Judge Reeves’s 93-page order opens with the line: "There are two sexes: male and female" and opines that the 2024 final rule "contravenes the plain text of Title IX by redefining 'sex' to include gender identity, violates government employees’ First Amendment rights, and is the result of arbitrary and capricious rulemaking."

By declining to extend the protections on the basis of gender identity or sexual orientation granted to employees under Title VII in the Supreme Court’s decision Bostock v. Clayton County to Title IX’s ambit, both judges reasoned that the 2024 final rule’s new definition of discrimination "on the basis of sex" was contrary to statutory interpretation. Subsequent discussions underpinning the injunctions included, but were not limited to:

• Potential First Amendment violations: Plaintiffs argued, and the courts found, that the 2024 final rule "would compel staff and students to use whatever pronouns a person demands, even when those are contrary to grammar rules, reality, or political ideologies, and it further prohibits staff and students from expressing their own views on certain topics." Such First Amendment concerns, according to plaintiffs and the courts, relate to the use of preferred pronouns and chosen names, especially in the context of the revised "hostile environment harassment" definition which now requires that conduct be "severe or pervasive" to constitute sex-based harassment.
   
• Bounds of rulemaking authority: Plaintiffs argued that the U.S. Department of Education "lacks any authority to rewrite Title IX" and that the "major questions" surrounding Title IX should be decided by Congress. Judge Reeves found that "Title IX’s text, coupled with the legislative history leaves little doubt that Title IX’s drafters meant 'male' and 'female' when they wrote 'on the basis of sex.'"
   
• Irreparable harm: "Based upon the Affidavits and Declarations of Plaintiffs, the compliance costs, the short time Plaintiffs have to comply, and the substantial likelihood of the violations of First Amendment rights and violations of the Spending Clause, Plaintiffs have shown irreparable harm … The State Plaintiffs have also shown irreparable harm in violation of First Amendment rights, preemption of state laws, loss of Title IX federal funds, pressure to change their laws, and invasion of state sovereignty."

Notably absent from both District Court orders is a substantive discussion of the procedural aspects of the 2024 final rule. The 2024 regulations proposed important changes to the process by which schools investigate and adjudicate allegations of Title IX misconduct. Such changes include the reanimation of the "single investigator model" by which the decisionmaker may be the same person as the Title IX coordinator or investigator and removes mandated timelines for various procedural stages. The changes also include elimination of the requirement that higher education institutions conduct live hearings with cross examination as well as increased monitoring and prevention efforts required of Title IX coordinators.

Both injunctions have resulted in blockages of the entire 2024 final rule. All 1,577 pages of the preamble and regulatory authority comprising the rule are now enjoined in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia.

What School Administrators Should Be Doing Now

In states where the 2024 final rule has been enjoined, education institutions should plan to continue compliance efforts in alignment with the current Title IX regulations enacted in 2020. While the litigation landscape continues to rumble, schools in states which have secured injunctions have the benefit of consistency across Title IX policies and procedures: Keep doing what you’ve been doing for four years. Comprehensive training obligations remain in effect regardless of whether your state operates under the 2020 regulations or the 2024 final rule, and the underpinnings of a fair and impartial Title IX investigative and adjudicative process have not changed.

Title IX coordinators, investigators, decisionmakers, and other stakeholders involved in the Title IX process should be well-acquainted with their institution’s current Title IX process in the event that an injunction involving their state impacts implementation of the 2024 final rule (and should be familiar with the 2024 changes in the event the injunction is overturned).

Administrators in states subject to injunctions should continue assessing the ways in which the proposed 2024 final rule would alter their existing policies and procedures, and should be prepared to revise their Title IX grievance process on short notice — clear and ongoing communication with legal counsel will be paramount as institutions grapple with litigation-related uncertainty.

Conversely, administrators in states that have not challenged the 2024 final rule should continue analyzing the proposed changes in advance of the rapidly-approaching August 1 implementation date. There is a (slim) possibility of a nationwide decision enjoining or permitting the 2024 final rule, but it is very likely that we will begin the 2024-2025 academic year where some states operate under the 2020 regulations and others will be fully implementing the 2024 final rule.

Magic 8 Ball: What’s Coming Next

In total, 26 states have filed or joined litigation efforts to block the 2024 final rule: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. Pending litigation remains, and several plaintiff groupings may see decisions rendered in short order:

• State of Kansas et al v. United States Department of Education et al. The court will hear oral arguments on the motion for preliminary injunction on June 20, 2024. The plaintiff-states in this case are Kansas, Alaska, Utah, and Wyoming.
   
• State of Alabama et al v. Cardona et al. The court will hear oral arguments on the motion for preliminary injunction on July 1, 2024. The plaintiff-states in this case are Alabama, Florida, Georgia, and South Carolina.
   
• Arkansas, Iowa, Missouri, Nebraska, North Dakota, South Dakota filed a joint lawsuit seeking an injunction on May 7, 2024. No decision has been reached.
   
• Texas and Oklahoma have filed individual lawsuits challenging the 2024 final rule, although no decision has yet been reached in either case.
   
• On June 11, 2024, a Texas federal judge issued an opinion striking down several 2021 guidance documents, including an executive order proclaiming that "[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation" and a notice positing that Title IX prohibited discrimination on the basis of sexual orientation or gender identity. This decision was limited to those 2021 guidance documents’ applicability in the state of Texas.
   
• Subsequently, the Sixth Circuit Court of Appeals affirmed an injunction of those same 2021 guidance documents in the states involved in that lawsuit: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

If you have any questions about your institution’s Title IX policies or procedures in light of these developments (or in anticipation of additional injunctions possibly being ordered), please reach out to us or your regular Parker Poe contact. You can also subscribe to our latest alerts and insights here.