New Title IX Rule Blocked in Recent Court Decisions: What Schools Need to Know

Two recent federal court opinions, impacting 10 states, have suspended the enforcement and implementation of the new Title IX rule, which was supposed to go into effect August 1.

The impacted states include Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia.

The United States District Courts for the Western District of Louisiana and the Eastern District of Kentucky respectively on June 13 and June 17, granted preliminary injunctions in similar lawsuits spearheaded by various states challenging the new Title IX rule. The rule expands the definition of sex discrimination under Title IX to encompass gender identity, sexual orientation, sex stereotypes, and sex characteristics.  

The courts based their decisions with the following reasons:

• The new rule is inconsistent with the text, structure, and purpose of Title IX, which the courts reasoned, was intended to protect biological women.
• There is an absence of clear Congressional authorization given that the new rule involves issues of vast economic and political significance in violation of the major questions doctrine.
• The new harassment standard is overbroad and violates First Amendment rights including religious rights.
• Plaintiffs face irreparable harm including compliance costs, potential First Amendment violations, and conflicts with state law.

The pair of decisions pointed to various state laws that were in conflict with the new Title IX rule such as statutes and proposed bills that emphasized the importance of privacy and safety for biological females in bathrooms and locker rooms and participation in sports conforming with their biological sex.

The decisions also pointed out the tension with the Free Speech Clause including that the new Title IX rule would compel speech for schools and their employees:

• Use requested pronouns even if they were against the individuals’ religious belief or
• Chill speech. Individuals might not express their views to avoid being accused of harassment.

Both decisions distinguish the 2020 Supreme Court opinion in Bostock v. Clayton County, Georgia, which expanded protection in the employment context under Title VII for sex discrimination to include sex orientation and gender identity.

The courts cited these reasons for the limitation:

• The Supreme Court explicitly limited its decision to Title VII and did not extend its rational to other laws.
• At the time of Title IX’s enactment in 1972, the definition of sex referred to biological males and females.
• Title VII and Title IX serve different purposes and contexts.
• Title IX includes specific exemptions that allow for sex-segregated activities and facilities such as single-sex schools, fraternities, and sororities.

What is clear is that schools in the impacted states are currently in a state of limbo. Schools that were planning on changing their Title IX policies or have already changed their Title IX policies in anticipation of the new rule going into effect will need to pause their efforts. Both of these decisions will likely be appealed, which could take a matter of months. It is important to note there are additional lawsuits asserting similar arguments pending in other courts that could expand the states where enforcement and implementation of the new Title IX rule.

Please contact Rebecca Sha or any member of the Phelps Education team if you have questions or need advice or guidance.