This spring, the U.S. Department of Education issued a new rule involving Title IX, the main federal law against sex discrimination in education. (Schools must comply with Title IX to get federal financial assistance.) Most notably, the rule extended the definition of “sex discrimination” under Title IX to include discrimination based on sexual orientation and gender identity, as well as sex stereotypes, sex characteristics, and pregnancy or related conditions.
Ten states asked judges in Louisiana and Kentucky to block the enforcement of the rule, arguing that three of its provisions were unlawful. These provisions included the definition of sex discrimination, an expanded definition of “hostile environment harassment,” and a provision requiring schools to allow students to use places like bathrooms or locker rooms consistent with their gender identity.
The judges felt that the states had a strong case. They issued “preliminary injunctions,” which put the rule on hold while the litigation unfolded. The federal government appealed these orders to the Fifth and Sixth Circuit Courts of Appeals. Meanwhile, it sought to narrow the scope of the orders during the appeals process, allowing at least part of the rule to take effect.
In July, the Fifth and Sixth Circuits declined to narrow the orders. The federal government then asked the U.S. Supreme Court to intervene. Last Friday, the Court similarly decided to leave the orders intact.
All nine Justices agreed that the three targeted provisions could not be enforced at this stage. However, four Justices would have allowed the other provisions of the rule to take effect. Justice Sonia Sotomayor wrote for the dissenters, who also included Justices Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson. They argued that the orders went too far in blocking provisions unrelated to the harm alleged by the states. The other five Justices (John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett) felt that the government had not shown that the lower courts erred in concluding that the three provisions affected other parts of the rule.
As a result, the rule is fully unenforceable in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia. Courts also have blocked the rule in 16 other states. Ultimately, the Supreme Court may need to review the merits of these challenges.
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