Washington — The Supreme Court on Friday declined to let the Biden administration enforce parts of a new rule that includes nondiscrimination protections for transgender students under Title IX while legal proceedings continue.
The Supreme Court left intact two separate orders from federal courts in Kentucky and Louisiana that blocked the Education Department from implementing the rule in full in 10 states. The Justice Department had asked the Supreme Court to stay parts of the rulings, but it declined.
Four of the nine justices would have let parts of the rules go into effect, according to the order, but all members of the court agreed that the main contested changes, including the new definition of “sex discrimination” to include “gender identity” and restrictions on same-sex spaces, could remain blocked.
“[A]”The members of the Court today agreed that plaintiffs are entitled to preliminary injunctive relief with respect to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination based on 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, Title IX expanded Title IX protections to LGBTQ students. The landmark 50-year-old law prohibits schools that receive federal funds from discriminating based on sex. The rule went into effect Aug. 1, but only in less than half of states. Federal judges have temporarily blocked it in 26 states following legal challenges.
The legal battles before the Supreme Court involved two groups of states challenging three provisions of the rule: one that recognizes that Title IX’s prohibition on sex discrimination covers gender identity; one that expands the definition of “hostile environment harassment” to include harassment based on gender identity; and one that clarifies that a school violates Title IX when it prohibits transgender students from using restrooms and other facilities consistent with their gender identity.
One complaint was filed 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, the federal district courts of Louisiana Kentucky and the Kentucky states believed the states had a good chance of succeeding in their cases and blocked the rule from being applied in its entirety in the 10 states involved in the litigation. The Biden administration asked federal appeals courts in both cases to allow it to temporarily apply parts of the rule — the provisions that were not challenged — but each rejected the requests in split decisions.
In response to the government’s argument that the three provisions should be severed, allowing the other unchallenged parts of the rule to take effect, the Supreme Court 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 that, therefore, the three provisions “are not readily severable from the other provisions.” It said the government had not provided “a sufficient basis to disrupt the lower courts’ tentative conclusions” and had not “adequately identified which particular provisions, if any, are sufficiently independent of the imposed definitional provision and could therefore remain in effect.”
Justice Sonia Sotomayor, joined by liberal Justices Elena Kagan and Ketanji Brown Jackson, and conservative Justice Neil Gorsuch, wrote in her partial dissent: “By preventing the government from enforcing dozens of regulations that defendants never challenged and that have no apparent connection to defendants’ alleged harms, the lower courts have exceeded their authority to address the discrete harms alleged here.” She predicted that the “injunctions this Court leaves in place will burden the government more than necessary.”
She noted that the unchallenged provisions included “reasonable modifications” that would allow new mothers to breastfeed or express breast milk or pregnant students to attend to pregnancy-related health needs. Another provision would bar schools from inquiring about an applicant’s marital status before hiring. Those provisions, Sotomayor said, “do not address discrimination based on gender identity or hostile environment harassment.” Therefore, she wrote, barring the government from enforcing any other part of the rule “unnecessarily impedes the government’s ability to enforce Title IX and deprives potential plaintiffs of protections against forms of sex discrimination that are not at issue in the defendants’ complaint.”
In seeking emergency relief from the Supreme Court, the Justice Department argued that the district court’s injunctions were “grossly excessive” because they blocked “dozens” of provisions of the rule that had not been challenged by the states, and that the lower court had therefore not found to be likely unlawful.
“The district court’s injunction would prevent the Department from implementing dozens of provisions of a landmark rule implementing Title IX, a vital civil rights law that protects millions of students from sex discrimination,” Solicitor General Elizabeth Prelogar wrote in both requests.
She said the April 2024 rule is an “omnibus” measure and that most of its provisions do not address gender identity. Instead, its provisions include clarifications on the definitions of more than a dozen terms, including “complaint,” “elementary school” and “postsecondary institution.”
While acknowledging that challenges to federal regulations before they are implemented are common, she accused lower courts of taking a “light-handed approach” to preliminary relief in such cases.
“The harm here is particularly severe because Title IX is one of the key federal civil rights laws 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 enforce the law’s essential protections across much of the country.”
But in the Louisiana challenge involving all four states, Republican officials told the Supreme Court in a brief that the Biden administration’s rule would have “a drastic impact” on schools, teachers and families.
They claimed the Education Department took Title IX and its “promise of equal educational opportunity for both sexes and turned it into a 423-page mandate” that requires covered entities to allow male students in girls’ restrooms, locker rooms and other facilities, and for teachers and students to use a transgender person’s preferred pronouns.
“The Department cannot seriously dispute that a partial suspension would cause confusion. Teachers would have only a few days, at most, before the start of the school year to understand their obligations under this court-drafted rule,” the Republican attorneys general wrote. “And that uncertainty and harm would affect parents and students alike.”
They said there was uncertainty about how a virtually deadlocked rule would work, leaving parents unable to decide whether to send their children to state 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 last-minute havoc – and unnecessary diversion of precious 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 lower courts.
The Education Department’s Title IX overhaul comes amid a wave of laws passed in Republican-led states in recent years that target transgender youth. More than 20 states restrict treatments such as puberty-blocking drugs, hormone therapy or surgeries for minors with gender dysphoria. The constitutionality of one of those laws, from Tennessee, will be challenged. reviewed by the Supreme Court in autumn.
At least 11 states have laws banning transgender people from using restrooms and other facilities consistent with their gender identity in schools, and 25 states ban transgender girls to compete on their school’s girls’ sports teams.
Jan Crawford contributed to this report.
