New Title IX Regulations Enjoined in Four More States in Decision With Likely Nationwide Effects

The U.S. District Court for the District of Kansas has become the latest federal district court to issue an injunction blocking the Department of Education’s 2024 Final Rule implementing Title IX sexual misconduct regulations, which is set to become effective on Aug. 1, 2024. The Kansas injunction bars implementation of the Final Rule in Alaska, Kansas, Utah and Wyoming, adding to prior injunctions from the Eastern District of Kentucky and the Western District of Louisiana covering Indiana, Kentucky, Ohio, Tennessee, Virginia, West Virginia, Louisiana, Idaho, Mississippi and Montana.

Additional litigation on the Final Rule remains pending before at least four other federal district courts. The Kansas decision is notably wider in scope than previous injunctions and may apply to schools and institutions in all 50 states, as the order extends to the members of plaintiff organizations involved in State of Kansas v. U.S. Department of Education.

3 Key Takeaways

1. This Order will impact institutions beyond those located in plaintiff states of Alaska, Kansas, Utah and Wyoming.

Unlike the cases before federal courts in Kentucky and Louisiana, the plaintiffs in State of Kansas v. U.S. Department of Education include three private organizations. While the Kansas decision stops short of issuing a nationwide injunction, it grants preliminary injunctive relief to each of these organizations, meaning that the Final Rule is blocked at “schools attended by the members of Young America’s Foundation or Female Athletes United, as well as the schools attended by the children of the members of Moms for Liberty.” The Kansas court directed plaintiff organizations to file a notice by July 15, 2024, identifying schools where a member or child of a member attends.

2. This Order will meaningfully hinder the ability of the Department of Education to implement the 2024 Final Rule.

Schools attended by even a single member or child of a member (in the case of Moms for Liberty) will be enjoined from implementing the Final Rule, potentially extending the ruling nationwide. This ruling therefore may require extensive enforcement efforts by the Department of Education to navigate a patchwork of individual schools and institutions affected by the injunction. It is unclear at this time how the Department will approach the implementation of its Final Rule in light of this challenge.

3. This Order recites similar reasoning as prior cases deciding this issue. 

One of the key issues in this and other cases challenging the Final Rule is the definition of “sex” under Title IX. Title IX is a federal statute that prohibits discrimination on the basis of sex in any federally funded education program or activity. In the Final Rule, the Biden Administration’s Department of Education defined “sex” to include gender identity. This is in line with the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia, in which that Court adopted an expansive definition of “sex” in the context of Title VII of the Civil Rights Act, prohibiting sex discrimination in employment. In contrast, the court in State of Kansas highlighted aspects of Title IX (unlike Title VII) that expressly recognize binary, sex-separate concepts within educational settings (locker rooms, living facilities, etc.).

The court in State of Kansas began its analysis by highlighting the recent demise of Chevron deference, referencing the U.S. Supreme Court ruling that courts need not defer to a federal agency’s interpretation of a statute simply because that statute is ambiguous. Instead, courts must now exercise “independent judgment” to determine whether a particular action is within the agency’s statutory authority. Here, the Court held that Title IX was not ambiguous in expressly applying to discrimination on the basis of sex and not gender identity. The Kansas court further held that the Final Rule implicates a “major question” which the Department of Education does not have authority to decide, namely whether “sex discrimination” in education encompasses gender identity. The court further determined that the definition of “sex” under the statutory language of Title IX likely means exclusively biological sex and not the more expansive concept of sex adopted by the Supreme Court in Bostock under Title VII.

The court also found that the Final Rule raises issues under the Spending Clause of the U.S. Constitution because it imposes conditions on the receipt of federal funds, which the court found could be ambiguous; and the Final Rule further raises issues under the First Amendment by raising the specter of chilling speech. The court ended its analysis by determining the Department of Education acted arbitrarily in promulgating the Final Rule which the court views as a “sharp departure from prior action without a reasonable explanation” and which the court finds is inadequately responsive to the concerns of the plaintiffs.

What Comes Next?

All indications suggest that a currently pending case in the U.S. District Court for the Northern District of Alabama, State of Alabama v. Cardona, will result in another injunction, this time barring implementation of the Final Rule, at a minimum, in Alabama, Georgia, South Carolina, and Florida. See also Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 11th Cir. 2022. The federal Courts in Texas and elsewhere are also likely to follow suit, begging the question of how soon a nationwide injunction against the Final Rule will be issued. See also State of Tenn. v. Becerra, 2024 WL 3283887 (S.D. Miss. July 3, 2024) (issuing nationwide injunction against enforcement of the Department of Health and Human Service’s revised Affordable Care Act rules which incorporated gender identity in the definition of “sex” in reliance on the expanded definition under Title IX).

In the meantime, it is unclear how the Department of Education will attempt to implement the Final Rule following the Kansas ruling; this issue will evolve once the plaintiff organizations in this case provide notice of the impacted schools on July 15. Schools and institutions in states not yet affected by state level injunctions should remain cognizant of the possibility they will appear on the list of enjoined institutions in this case.

The national landscape for enforcement of the Department’s Final Rule grows less cohesive by the day, but this injunction and others like it will be just the beginning of a prolonged legal battle over the meaning of Title IX and the Department’s Final Rule. Institutions not subject to an injunction should be prepared to comply with the Final Rule beginning on Aug. 1, 2024.

Institutions subject to an injunction, on the other hand, will continue to need to comply with the 2020 Title IX regulations in place prior to the adoption of the 2024 Final Rule  – unless and until an appeal may result in reversal of an existing injunction.

The need to prepare for an uncertain future with regard to Title IX means institutions should:

• Closely monitor developments in ongoing cases as the results may quickly change in terms of whether the 2020 or 2024 Title IX regulations are applicable to the institution
• Evaluate their ability under state law to deploy resources to prepare for implementation of the Final Rule
• Work with their Title IX offices and counsel to quickly adapt
• Effectively communicate the fraught regulatory environment to institutional stakeholders

For more information, please contact the Barnes & Thornburg attorney with whom you work or Janilyn Daub at 574-237-1139 or janilyn.daub@btlaw.com, Daniel Cohen at 404-697-9237 or dcohen@btlaw.com or Dustin Meeks at 317-231-6427 or dustin.meeks@btlaw.com. Sam Kennedy, summer associate, assisted with this alert.

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