A Missouri district court has issued an injunction preventing enforcement of the most recent U.S. Department of Education regulations applying Title IX to transgender students. Six states sued the U.S. DOE over the regulations, and the court agreed that the agency overstepped by interpreting Title IX to include transgender issues. The six plaintiff states — Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota — are free to adopt contrary rules without losing federal funds.
The main issue was how to apply the U.S. Supreme Court's decision in Bostock v. Clayton County, in which case the Justices decided that Title VII prohibits discrimination against transgender employees. The Missouri court decided that Bostock does not control Title IX, citing (1) language in Bostock in which Supreme Court specifically limited its decision to Title VII, (2) the common understanding of Title IX language at the time it was enacted, and (3) the different Congressional powers underlying the two statutes. In regard to the latter point, Congress enacted Title VII under under the Commerce Clause, which provision grants Congress "expansive" power. It enacted Title IX, by contrast, under its Spending Clause power, which clause requires exceedingly clear language to condition funds on particular behavior.
This issue is far from settled, but to date, most district courts that have considered the issue have enjoined enforcement of the new Title IX rules. Schools in those states should follow state rules until the federal courts clearly rule otherwise, and, as always, consult legal counsel about which rules have survived legal challenges.
After preliminary review and without ultimately deciding the issue, the Court concludes that plaintiffs have a fair chance of prevailing on their argument that the unambiguous plain language of Title IX and the legislative history support their position that the term "sex" means biological sex.
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