Federal district courts in Kentucky and Louisiana have ruled against the Biden administration’s new Title IX final rule, effectively blocking the rule from going into effect in 10 states. In April, the Department of Education released its long-anticipated rewrite of Title IX which asserts for the first time that Title IX’s ban on sex discrimination in federally funded education programs includes sexual orientation and gender identity (SOGI). The Department based its final rule on the Supreme Court’s decision in Bostock v. Clayton County (2020), in which the Court ruled that sex in the employment context of Title VII of the Civil Rights Act could be understood to prohibit discrimination on the basis of SOGI. The Title IX rule was almost immediately challenged by lawsuits from states and advocacy groups as an unconstitutional rewrite of federal law to push the Biden administration’s LGBT agenda.

Last week, House Republicans also introduced a resolution to stop Title IX under the Congressional Review Act, a law that allows Congress to review and revoke a recently issued regulation. The federal district courts in Kentucky and Louisiana ruled that the Department of Education did not have the authority to rewrite Title IX’s prohibition on sex discrimination to include SOGI. Indeed, in the 50 years that Title IX has been in effect, Congress has declined to expand the definition of sex to include other categories. 

The courts also stated that the final rule could violate the First Amendment by requiring students and teachers to deny their religious beliefs or be forced to affirm a student’s gender identity through the use of preferred pronouns. As the AACS argued in our public comments on the Title IX proposed regulations, this rule would have a slew of negative effects on education, including violating the First Amendment’s religious freedom and free speech clauses, posing threats to the safety and privacy of women and girls, wresting authority from Congress, weakening parental rights, and superseding several state laws that protect women and girls. Further, while Title IX contains a robust religious exemption for Christian institutions, it does not protect individual students or faculty at secular institutions, who may be faced with the decision to follow their religious beliefs or violate federal law.
 
With these two court rulings, the Department of Education is barred from enforcing its new Title IX rules in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia. A total of 26 states have sued the Department over Title IX, and additional court cases are pending that would affect schools and colleges in Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming. Joining these states are organizations including Alliance Defending Freedom, Independent Women’s Forum, Parents Defending Education, and Speech First that advocate for First Amendment protections and for the privacy and safety of women and girls who would be negatively affected by this rule. The Department of Education is expected to appeal the courts’ rulings.