Kansas Court Blocks 2024 Title IX Rules in Four States and Beyond

A third court has enjoined the 2024 Title IX Rules. Unlike earlier decisions by courts in Louisiana and Kentucky—which enjoined the 2024 Rules in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia—this decision out of Kansas could impact schools across the country. 

Four states—Alaska, Kansas, Utah, and Wyoming—and three national advocacy groups—Young America’s Foundation, Female Athletes United, and Moms for Liberty—challenged the 2024 Rules in federal court in Kansas. On  July 2, the court entered a preliminary injunction that prohibits implementation or enforcement of the 2024 Rules in these four  states and in schools nationwide attended by members of the Young America’s Foundation or Female Athletes United or by the children of members of Moms for Liberty. The court gave the advocacy organizations until July 15 to submit lists of schools which members or children of members attend. The Department of Education (ED) will likely appeal this decision and ask to limit its scope. For now, however, schools across the country should be aware of the court’s ruling and its potential impact.  

The Kansas court focused on the LGBTQI+ protections in the new rules. The court relied on legislative history and the  meaning of the term “sex” in 1972, when Title IX was enacted, and  ruled that ED exceeded its authority in defining sex discrimination to include discrimination based on sexual orientation and gender identity. The court rejected ED’s argument that  Bostock v. Clayton County’s holding that Title VII’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity, applies to Title IX.  The court found that the 2024 Title IX Rules improperly favor the interest of transgender students to “express[] and conduct[] themselves in accordance with their individual notions of gender identity” over the free speech, privacy, and safety interests of other students.  

In addition, the court found that the definition of hostile environment harassment in the new rules violates the First Amendment by chilling free speech. The court held that the definition—unwelcome conduct that is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the school’s education program or activity—is vague, overbroad, and subjective. The court expressed concern that this definition of hostile environment harassment might require a school to discipline a student who believes “that sex and gender are the same . . . and/or that a person’s gender identity cannot deviate from his or her biological sex.”  

Although the court did not discuss many provisions of the 2024 Rules such as the requirements for Title IX grievance processes, the court denied ED’s request to stay only the challenged provisions, and ordered a stay of the implementation of the Rules in their entirety.   

While the court denied the request for a nationwide injunction, the court did not limit the injunction to the four states involved in the case. Rather, the court ruled that the members of the three non-profit advocacy organizations across the United States were entitled to protection from enforcement of the new rules. The court gave the organizations until July 15 to list schools which their members or members’ minor children attend. The court’s injunction prohibits ED from implementing the 2024 Title IX Rules at all schools identified by these organizations, anywhere in the United States.  

The court recognized that its decision opens the door to “patchwork enforcement” of the new rules. Indeed, under the court’s injunction, it is possible that two neighboring schools in the same school district may be required to apply different Title IX rules, depending on whether one school enrolls a student who is a member, or whose parent is a member, of one of the three advocacy groups involved in the case. The judge asked ED to consider the practicality of continued enforcement of the 2024 Title IX Rules under this legal framework and whether to postpone the new rules’ August 1, 2024 effective date in light of the court’s decision.  

ED will likely appeal the decision to the U.S. Court of Appeals for the Tenth Circuit and ask both the Kansas court and the court of appeals to partially stay the injunction to narrow its scope while the appeal is pending. ED may focus on the Kansas court’s unique extension of its injunction to any schools where members of the Young America’s Foundation or Female Athletes United or the children of members of Moms for Liberty may enroll. We anticipate ED to challenge multiple portions of the Kansas court’s decision, including whether the advocacy organizations have standing to bring suit and obtain judicial relief. 

We will continue to monitor the Kansas case and the list of schools the advocacy organizations submit on July 15 to determine the institutions impacted by this ruling. We are monitoring decisions in other courts across the country, including Texas, that are considering challenges to the 2024 Title IX Rules, and providing continuous updates on titleixtips.com.   

Contact your Thompson & Horton attorney or our Title IX team attitleix@thlaw.comwith any questions.