Title IX Litigation Update

There’s a lot happening on the Title IX front lately and we’re here to break it down into digestible information for you!

First, we need to provide some background.

Under the Obama administration, the Department of Education (“ED”) issued guidance stating that the prohibition of sex discrimination under Title IX included discrimination based on gender identity. Not long after Trump took office, the ED withdrew that guidance. In 2020, the Trump administration’s Title IX regulations went into effect – what we all refer to as the 2020 regs.

In June of 2020, the Supreme Court issued a landmark decision in Bostock v. Clayton County. The Supreme Court held that Title VII of the Civil Rights Act (which prohibits employment discrimination based on race, color, religion, sex, and national origin) prohibited employment discrimination based on sexual orientation and gender identity, because they would be considered discrimination based on sex.

Shortly after taking office in 2021, President Biden issued an Executive Order establishing his administration’s policy that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Within this EO, federal agencies were ordered to review and revise all their existing orders, regulations, guidance documents, etc. that were administered under Title VII or other statutes prohibiting sex discrimination so they followed the administration’s policy set forth in the EO.

In response, the Department of Justice sent a memorandum to federal agencies stating it had determined that Title IX also prohibited discrimination on the basis of gender identity and sexual orientation. In reaching this conclusion, it considered the Bostock case, the text of Title IX, and several appellate court decisions.

Several months later, on June 22, 2021, the ED published a Notice of Interpretation and clarified that discrimination based on sexual orientation and gender identity is prohibited by Title IX, and pointed to the Bostock decision as support. On June 23, 2021, the ED issued a Dear Educator letter and a Fact Sheet, both reiterating that discrimination based on sexual orientation and gender identity is prohibited. We’ll refer to these documents collectively as the 2021 Guidance Documents. Several lawsuits were filed after the 2021 Guidance Documents were issued, in essence stating the ED’s interpretation of sex discrimination to include sexual orientation and gender identity was unlawful.

On June 23, 2022, the ED published a Notice of Proposed Rulemaking with regard to the Title IX regulations.

On April 29, 2024, the ED issued the final Title IX regulations, which included that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, sexual orientation, and gender identity. Lawsuits were filed almost immediately challenging the final regulations. So far, there are seven lawsuits pending that involve 26 states. The states asked the courts to issue preliminary injunctions against the ED, which would prevent the August 1 enforcement date of the regulations. Among the arguments made in these lawsuits is that individual state laws conflict with the ED’s prohibition on discrimination based on sex stereotypes, sex characteristics, sexual orientation, and gender identity. Thus, states either have to change their laws or lose federal funding.

Now that we are caught up, let’s dive into what has been happening in the past week.

Decisions Related to the 2021 Guidance Documents

On June 11, 2024, a Texas federal judge issued an opinion striking down the 2021 Guidance Documents. Please understand that this decision is not related to the final 2024 Title IX regulations, nor does it strike down those regulations.

The judge’s decision was related to a lawsuit filed in 2023 by the Texas Attorney General. Texas has multiple state laws and school district policies that would have been violated if the 2021 Guidance Documents were followed. Thus, if Texas schools ignored the guidance documents and followed their state laws and policies, they risked losing millions of dollars in federal funding. However, if they followed the ED guidance documents, they would have to change state laws and school district policies.

Ultimately, the court struck down the 2021 Guidance Documents, stating that they are unlawful and cannot be enforced by the ED – but only as it relates to the State of Texas. It further stated that the ED cannot implement or enforce future guidance that, in essence, says Title IX prohibits discrimination based on sexual orientation or gender identity. Notice that the judge said future “guidance” as opposed to regulations. The judge specifically stated that the decision does not apply to the final Title IX regulations.

Then, on June 14, 2024, the 6th Circuit Court of Appeals upheld a Tennessee federal judge’s 2022 ruling which granted a preliminary injunction and said the ED was not allowed to enforce the 2021 Guidance Documents because they should have gone through the notice and comment rulemaking process. That preliminary injunction only involves the states that are part of that particular 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.

Decisions Related to the 2024 Final Title IX Regulations

Out of the seven pending lawsuits related to the final Title IX regulations, Louisiana was the first to issue a ruling, providing us with some insight into what may happen with the others.

On June 13, 2024, a Louisiana federal judge granted a preliminary injunction which prevents the ED from implementing and enforcing the final Title IX regulations pending further order from the court. However, this preliminary injunction only applies to Louisiana, Mississippi, Montana, and Idaho. So, if you are in one of those four states, implementation of the final regulations is delayed and you do not have to comply with the August 1 deadline.

Meanwhile, the lawsuit in Kentucky is also making some movement. On June 10, 2024, the court heard arguments as to whether a similar preliminary injunction should be issued involving the states that are a party to that lawsuit – Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. We are waiting for the court’s ruling in this matter. June 17 Update: A preliminary injunction now enjoins the August 1 implementation date for these six plaintiff states as well.

The other pending lawsuits are at various stages, with some having hearings set and others still waiting for legal documents to be filed.

Congressional Review Act

As if wrapping our heads around the different court decisions weren’t enough, we also learned that a resolution of disapproval was passed by the House Committee on Education and the Workforce in an attempt to block the final Title IX regulations.

Under the Congressional Review Act, Congress can overturn a federal agency’s rule within 60 days. The resolution has to be approved by the House and Senate and is then subject to presidential veto.

While we are keeping an eye on this, we do not expect that it will pass the Senate. Even if it did, President Biden would likely veto it.

What should you do now?

Talk with your legal counsel to make sure you understand which court decisions affect your school district or institution. If you are in a state that still must implement the final Title IX regulations by August 1, keep working on updating your policies and procedures.

At ICS, we know this kind of uncertainty can be frustrating when you are in the middle of developing new policies and procedures with an implementation date of August 1. We are here for you and will continue to keep you updated on new developments.