In a tight 5-4 vote, with conservative Justice Neil Gorsuch joining the three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in dissent, the Supreme Court has maintained a hold on new regulations about sex discrimination in education. The ruling rejected a Biden administration request and impacts about half the states. The Court’s decision effectively denied the Biden administration’s emergency request to partially reinstate its new Title IX rule.
These changes made to Title IX, which protects against sex discrimination in schools, cover sexual orientation and gender identity for the first time. Republican state attorneys general in about half the states have forced judges to block implementation of the Biden-Harris law.
The rules took effect elsewhere in U.S. schools and colleges on Aug. 1. The court’s decision is a blow to the Biden administration’s ongoing efforts to protect transgender inclusion.
The Supreme Court declined to allow the Biden administration to enforce portions of a new rule that includes protections from discrimination for transgender students under Title IX while legal proceedings continue.
“By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here,” Sotomayor wrote.
The decision is not a final ruling in the various lawsuits challenging the new Title IX rule, and the cases will now return to lower appeals courts, but could return to the Supreme Court again.
Two separate orders from federal courts in Kentucky and Louisiana, which blocked the Department of Education from enforcing the entirety of the rule across 10 states, were left in place by the court’s ruling. The Justice Department had asked the Supreme Court to put part of the decisions on hold, but it declined all the requests.
Four of the nine justices would have let part of the rules take effect, according to the order, but all members of the court agreed that the key disputed changes, including the new definition of “sex discrimination” to include “gender identity” and the restrictions on same-sex spaces, could remain blocked.
“[A]ll Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity,” the Supreme Court said in its unsigned opinion.
The measure at issue in the disputes was announced by the Biden administration in April and expanded Title IX’s protections to LGBTQ+ students. The landmark 50-year-old law prohibits education entities that receive federal funds from discriminating on the basis of sex. The rule took effect Aug. 1, but only in less than half of the states. Federal judges have temporarily blocked it in 26 states.
At issue in the case are a series of battles involving two groups of states that contested three different provisions of the rule: The first recognizes that Title IX’s prohibition on sex discrimination covers gender identity; the second broadens the definition of “hostile-environment harassment” to include harassment based on gender identity; and the third clarifies that a school violates Title IX when it prohibits transgender students from using restrooms and other facilities consistent with their gender identity.
One case was brought by four states, Louisiana, Mississippi, Montana, and Idaho as well as the Louisiana Department of Education. The second was filed by six states, Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. In June, federal district courts in Louisiana and Kentucky found the states were likely to succeed in their cases and blocked enforcement of the entire rule across the 10 states involved in the litigation.
The Supreme Court, in response to the Biden administration’s argument that the three provisions should be severed, allowing the other unchallenged parts of the rule to go into effect, agreed with the lower courts that “the new definition of sex discrimination is intertwined with and affects many other provisions of the new rule,” and therefore, the three provisions “are not readily severable from the remaining provisions.” It said that the government did not provide “a sufficient basis to disturb the lower courts’ interim conclusions” and had not “adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.”
Justice Sonia Sotomayor, joined by Kagan, Jackson and Gorsuch, wrote in her partial dissent, “By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here.” She predicted the “injunctions this Court leaves in place will burden the Government more than necessary.”
In seeking emergency relief from the Supreme Court, the Justice Department argued that the district court’s injunctions are “grossly overbroad” because they block “dozens” of the rule’s provisions that weren’t challenged by the states, and that the lower court therefore did not find were likely unlawful.
“The district court’s injunction would block the department from implementing dozens of provisions of an important rule effectuating Title IX, a vital civil rights law protecting millions of students against sex discrimination,” Solicitor General Elizabeth Prelogar wrote in both requests.
“The harm is particularly acute here because Title IX is one of the core federal civil rights statutes that guarantees nondiscrimination in the nation’s education system,” Prelogar wrote. “If the court does not grant the requested stay, the department will be unable to vindicate the critical protections of that statute in a wide swath of the country.”
But in the challenge from Louisiana involving the four states, Republican attorneys general told the Supreme Court in a filing that the Biden administration’s rule would “radically impact schools, teachers and families.”
They claimed the Education Department took Title IX and its “promise of equal educational opportunities for both sexes and transformed it into a 423-page mandate” that requires covered entities to allow male students in girls’ bathrooms, locker rooms and other facilities, and teachers and students to use a transgender individual’s preferred pronouns.
“The Department cannot seriously contest that a partial stay would sow widespread confusion. Teachers would only have days, at most, before school starts, to understand their obligations under the judicially blue-penciled rule,” the Republican attorneys general wrote. “And that uncertainty and harm would equally affect parents and students.”
They said there is uncertainty about how a practically blocked rule would operate, leaving parents unable to make decisions about whether to send their children to public school.
In a separate filing in the Kentucky case, officials from the six states accused the Biden administration of forcing schools to spend “immense sums” to comply with the new rule in just three months.
They warned the court not to “unleash eleventh-hour havoc — and needless diversion of valuable resources — on schools, students, and sovereign states.”
In addition to the Louisiana and Kentucky cases, a number of other challenges to the Biden administration’s Title IX rule are pending in the lower courts.
The Education Department’s Title IX changes are in response to the massive number of laws and policies put forward enacted in GOP-led states that have dramatically impacted transgender youth. More than 20 states restrict treatments like puberty-blocking drugs, hormone therapy or surgeries for transgender minors. The Supreme Court is scheduled to determine the constitutionality of one of those laws in Tennessee on next season’s roster.
At least 11 states have laws banning transgender people from using bathrooms and other facilities consistent with their gender identity in schools, and 25 states prohibit transgender girls from competing on their schools’ female sports teams.
OutKick host Riley Gaines, a former collegiate swimmer who has become a spokeswoman against trans women and girls in women’s sports, spoke in favor of the ruling on her podcast, “Gaines for Girls with Riley Gaines.”
Gaines said, “Not all Supreme Court justices know what a woman is, but today enough did, and that’s a win worth celebrating. This is a win for women, free speech, the rule of law and common sense. Onward.”
