These Republican-Led States Are Blocking New Title IX Rules

Judges blocked the Biden administration’s new Title IX regulations from taking effect in 26 states. Conservative leaders in Congress are trying to reverse it outright.

Title IX is a civil rights law prohibiting educational institutions that receive federal aid from engaging in sex-based discrimination. The new regulations, slated to take effect this summer, replace Trump-era rules that addressed sexual misconduct and established requirements for how colleges and universities handle Title IX complaints.

The rule also expands the definition of sex-based discrimination to include discrimination and harassment based on pregnancy or related conditions, sexual orientation, and gender identity.

Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction against the Department of Education (ED) from enforcing the new rule in:

Chief Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky did the same for:

Judge John Broomes of the U.S. District Court for the District of Kansas also blocked the new regulations in:

U.S. District Court Judge Matthew Kacsmaryk blocked the regulations in Texas.

Judge Rodney Sippel of the Eastern District of Missouri blocked enforcement of the regulations in:

And, most recently, U.S. District Judge Jodi Dishman from the Western District of Oklahoma granted Oklahoma’s request for a preliminary injunction, just one day before the new rules were set to take effect.

It primarily took issue with including “gender identity” in the definition of sex discrimination, saying that the final rule would prohibit single-sex bathrooms and locker rooms.

Doughty argued in his decision that Title IX “was written and intended to protect biological women from discrimination,” and that including gender identity or sexual orientation in the definition of sex discrimination would “subvert the original purpose of Title IX.”

“It is clear in the text of Title IX itself, and in the decades-long impact of Title IX, that its enactment was created to apply to two sexes. There is nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/or women,” he wrote.

Reeves wrote in his decision that including “gender identity” in the definition of sex discrimination contradicted Title IX’s original intent.

“There are two sexes: male and female,” the first sentence of the opinion read.

Reeves also argued that the regulations would violate government employees’ First Amendment rights and were produced through “arbitrary and capricious rulemaking.”

“This case concerns an attempt by the executive branch to dramatically alter the purpose and meaning of Title IX through rulemaking … If the new rule is allowed to take effect on August 1, 2024, all plaintiffs will suffer immediate and irreparable harm,” he wrote.

Broomes primarily took issue with the LGBTQ+ protections included in the new regulations and argued that the ED exceeded its “statutory authority” to expand the definition of sex discrimination in the final rule.

“Significantly, the purpose of Title IX was to protect ‘biological women from discrimination in education …’ The [EDs] reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education,” the opinion read.

The injunction also blocks the enforcement of the new rules at any educational institution attended by a member of three of the conservative groups that joined the lawsuit: Young America’s Foundation, Female Athletes United, and minor children of Moms for Liberty members.

In total, over 670 institutions across 50 states and territories are covered by the temporary injunction, including colleges and universities in states that are not currently involved in lawsuits against the Biden administration, according to Inside Higher Ed.

Kacsmaryk in Texas wrote that the Biden Administration’s Title IX rule “inverts the text, history, and tradition of Title IX: the statute protects women in spaces historically reserved to men” and instead “inserts men into spaces reserved to women.”

Kacsmaryk also argues that the new regulations would require state educational institutions to cover abortion on student health insurance plans similar to “any other temporary medical condition.”

“The Final Rule expressly requires Texas recipients to cover abortions in their student health insurance plans … but Texas law prohibits that exact conduct,” he wrote. “These conditions create an obvious conflict between the enforcement of federal and state law. Based on the Plaintiffs’ standing and the foregoing analysis, the Court FINDS that these regulations are arbitrary and capricious.”

Dishman takes a similar approach, saying that the state is “substantially likely to succeed on the merits” of the lawsuit because the ED exceeded its statutory authority and was “arbitrary and capricious” in passing the final rule.

“The Final Rule elevates gender identity and its accompanying protections above that of biological sex—i.e., women. Such a contradiction of Title IX’s text and an erosion of its purpose cannot be permitted absent congressional action,” she wrote.

She added: “The Department’s claim that it can expand ‘sex’ in Title IX to include ‘gender identity’ despite several decades of ‘sex’ solely meaning the biological differences between men and women falls flat.”

Not all states that have sued over the new regulations have been immediately successful. Judge Annemarie Carney Axon of the U.S. District Court for the Northern District of Alabama denied a motion for an injunction from Alabama, Florida, Georgia, and South Carolina, which sought to block the Biden administration’s rules in those states.

However, one day later, the U.S. Court of Appeals for the Eleventh Circuit reversed the decision, prohibiting the ED from enforcing the rule on Aug. 1.

On June 13, the House Education and Workforce Committee advanced a Congressional Review Act (CRA) resolution of disapproval concerning the new Title IX rules on a party-line vote, which, if passed, would overturn the final rule.

“This resolution does nothing more than reinforce a biological and common sense reality that we all know deep down is true. Women should be safe in intimate spaces and men should not compete in women’s sports,” Rep. Virginia Foxx, a Republican representing North Carolina and chairwoman of the House Education and the Workforce Committee, said in her opening statement.

“The Biden rule to allow men to intrude into women’s space and take opportunities away from women is deeply unsettling and frankly unnatural.”

Under the Congressional Review Act, Congress can overturn federal agency actions, such as final rules, within 60 days if both the House and the Senate pass a joint resolution of disapproval signed by the President or if Congress overrides the President’s veto.

Rep. Mary Miller, a Republican representing Illinois, introduced the House version of the legislation, while Republican Senators Jim Risch and Mike Crapo of Idaho and Cindy Hyde-Smith of Mississippi led the effort in the Senate.

“For more than half a century, Title IX has protected women and girls, ensuring they have equal opportunities in education … This divergence is a blatant violation of the protections Title IX was meant to guarantee, and it undermines the very foundation of women’s rights and security in their private spaces,” Miller said in a statement introducing the legislation.

On July 11, the Republican-controlled House of Representatives passed the legislation. However, it is expected to face obstacles in the Senate. Additionally, the White House stated that the president would veto the bill if it passed Congress.

“The Department’s rule is critical to ensuring that no person experiences sex discrimination at school. The rule provides protection from sex-based harassment, including sexual violence; promotes accountability and fundamental fairness through a fair, transparent, and reliable process; and ensures that students, employees, and families understand their rights and that institutions know their responsibilities,” the White House said in a policy statement.

“Passage of H.J. Res. 165 would eliminate these critical protections that keep students safe and able to realize their full potential.”