With the August 1, 2024, effective date of the Department of Education's April Title IX regulations (Final Rule) just weeks away, court action in pending lawsuits challenging the Final Rule across the country continues. The challenged portion of the Final Rule defines discrimination "on the basis of sex" to include discrimination on the basis of one's gender identity. These challenges – brought by a number of states, school districts, and other organizations – have been f filed in District Courts in Kansas, the Eastern District of Kentucky and the Western District of Louisiana; the challenges predominantly center on the definition of "sex" in the context of Title IX, in addition to other issues relating to the adjudication of Title IX complaints.
Institutions should keep a close eye on the litigation efforts affecting the Final Rule with regard to their state as we approach August 1.
Significant Increase in the Impact of a Current Preliminary Injunction
In a recent injunction, covered in our previous alert, a federal judge in Kansas granted a preliminary injunction halting enforcement of the Final Rule. As noted in the alert, the judge granted the injunction not only within the plaintiff-states involved (Alaska, Kansas, Utah, and Wyoming), but also took the additional step of granting the injunction as applied to members of the non-state plaintiff organizations. The court directed these organizations to submit a list of institutions at which their members were enrolled and held that its injunction would apply to those institutions as well.
On July 15, two of these non-state plaintiffs submitted to the district court a list of over 670 colleges and universities reflecting where these organizations had members on campuses throughout the country. This effectively extends the reach of the Kansas injunction across the United States, including to institutions in states that have filed amicus briefs in support of the Final Rule.
New Preliminary Injunctions in Texas
Other cases on these issues continue to proceed. On July 11, two different federal judges in Texas issued preliminary injunctions blocking enforcement of the Final Rule. These injunctions join those issued by courts in Kentucky, Louisiana, and Kansas, where preliminary injunctions are currently in place. In addition to the issues discussed above, Judge Matthew Kacsmaryk's decision in the State of Texas case was the first to address and accept challenges to the regulations on grounds relating to abortion legality and healthcare provisions included within the Final Rule. Texas now becomes the fifteenth state in which courts have enjoined the Final Rule in its entirety.
The other injunction came from a lawsuit filed by Carroll Independent School District, also located in Texas. Notably, the injunction in the Carroll Independent School District case was more limited in scope than the other statewide orders, including the statewide Texas case, and enjoined only the contested aspects of the Final Rule instead of enjoining the rule in its entirety.
Setbacks for the Government in Its Challenges to the Scope of the Injunctions
The government continues to challenge these injunctions—including by appealing the decisions to the U.S. Courts of Appeal and filing motions to stay the injunctions pending the resolution of these appeals—but has suffered multiple setbacks on that front in the past couple of weeks as well.
Judges in Louisiana and Kentucky, where the first two injunctions were issued, denied the government's motions to stay the preliminary injunctions pending resolution on appeal and rejected the government's arguments that an injunction of the entire Final Rule was too broad. In Kentucky, Judge Danny Reeves provided a detailed opinion that recapped his rejection of the application of Bostock v. Clayton County, 590 U.S. 644 (2020), to the Title IX context. Judge Reeves emphasized that he did not find it possible to parse out specific provisions to enjoin and that the Final Rule must, therefore, be enjoined in its entirety: "the challenged importation of Bostock's reasoning is so central to the Final Rule that severing expressly challenged provisions is not a viable option."
Judge Terry Doughty of the Western District of Louisiana provided little in the way of legal analysis of the government's motion—just as he did in his seemingly rushed opinion granting the preliminary injunction—but similarly denied the motion for a partial stay of the injunction while the parties await resolution on appeal. The Fifth and Sixth Circuit Courts of Appeal agreed with these decisions and similarly denied the government relief on its motions for a partial stay of the injunctions. The government filed a similar motion in the Kansas case last week, which now has more wide-reaching implications following the filing of the list of schools by the non-state plaintiffs noted above.
More Preliminary Injunctions on the Horizon
There appears to be momentum for further injunctions as the August 1 effective date fast approaches. Currently, there remain outstanding motions for preliminary injunction in cases in Alabama, Arkansas, and Oklahoma—all of which have picked up speed in recent weeks. Notably, plaintiffs in Alabama and Arkansas have filed notices with their respective courts alerting them to these recent orders in Texas and the decisions by the Courts of Appeal. Decisions in these three additional lawsuits would affect Alabama, Arkansas, Florida, Georgia, Iowa, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, and South Dakota. We will continue to monitor these ever-evolving cases and encourage you to contact the author if you have additional questions.
This alert was prepared with substantial assistance from Bass, Berry & Sims summer associates Laura Collins and Ben Peterson.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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