Louisiana and Kentucky Courts Block 2024 Title IX Rules in Ten States

We now have the first two court rulings on the validity of the 2024 Title IX Rules. On June 13, a federal district court in Louisiana ruled that the Department of Education (ED) exceeded its authority in issuing the 2024 rules and preliminarily enjoined ED and the Department of Justice from enforcing them against Idaho, Louisiana, Mississippi, and Montana. On June 17, a federal district court in Kentucky ruled that the 2024 Title IX Rules are “arbitrary and capricious” and similarly enjoined the federal government from enforcing the new rules against Kentucky, Tennessee, Ohio, Indiana, Virginia, and West Virginia.  

What Did the Courts Decide? 

The primary focus of both opinions is the LGBTQI+ protections in the 2024 Title IX Rules, which define sex discrimination as encompassing discrimination on the basis of sexual orientation, gender identity, and sex stereotypes. The courts rejected ED’s position that the protections under Title IX are similar to the protections under Title VII, which prohibits discrimination in employment. ED relied on Bostock v. Clayton County, a Supreme Court decision that held that Title VII’s prohibition of “sex” discrimination in the workplace includes discrimination based on sexual orientation and gender identity. 

The Louisiana court took a historical approach and examined the meaning of “sex discrimination” at the time of the 1972 enactment of Title IX and concluded that Title IX was “intended to prevent biological women from being discriminated against in education in favor of biological men” and created only “to apply to two sexes.” Likewise, the Kentucky court ruled that at the time Title IX was enacted the term “sex” “ordinarily was understood to mean ‘the character of being either male or female.’” The court determined that the term “sex” does not include “subjective gender identity” and concluded that ED is attempting to administratively rewrite Title IX by “redefining” the term sex to include gender identity.  

Both courts rejected ED’s reliance on Bostock. The judges ruled that Bostock is limited to the workplace context. The two courts also found that ED’s interpretation of “sex discrimination” in the 2024 Title IX Rules violates the “major questions” doctrine. The courts opined that, under this principle, government agencies lack authority to make decisions of “vast economic and political significance” without specific congressional authorization and that ED lacked explicit congressional authorization to broaden the definition of sex discrimination. 

The courts also ruled that the new Title IX rules violate the U.S. Constitution’s Spending Clause. Under the Spending Clause, when Congress provides funds to schools,  it may impose conditions in exchange for receiving those funds so long as the conditions are clear. The courts determined that schools did not receive clear notice that accepting federal funds would mean agreeing that sex discrimination would encompass “gender identity” or “transgender status.”  

Both courts expressed concern that, under ED’s rules, refusal to use students’ preferred pronouns or misgendering could constitute sex-based harassment. They further found that the rules’ definition of sex-based harassment violates the First Amendment. The rules define prohibited sex-based harassment as 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 recipient’s education program or activity. 

The Louisiana court found that this prohibition “chills and punishes protected speech” by requiring “staff and students to use whatever pronouns a person demands, even when those are contrary to grammar rules, reality, or political ideologies.” The Kentucky court also criticized the harassment definition in the rules, finding that they would “compel speech” by forcing students and teachers “to use ‘preferred’ rather than accurate pronouns” and, thus, force schools to “convey a particular message that may contradict moral or religious values.”  

In addition, the Louisiana and Kentucky courts both deemed the new Title IX rules “arbitrary and capricious” in violation of federal administrative law and found that the rules did not sufficiently explain the reasoning for, or the implications of, defining sex discrimination to include discrimination based on sexual orientation and gender identity. The Louisiana court faulted ED for not including “any requirements for changing one’s gender identity” and was concerned that a “gender fluid” person might “change gender identities every day or several times per day.” That court also stated that ED “failed to consider that biological females and biological males that identify as females have different body parts” and worried that the 2024 Title IX Rules may impose significant costs on schools—including allegedly with respect to redesigning locker rooms and bathrooms and “much higher liability insurance premiums.”  

Along the same lines, the Kentucky court questioned why federal regulations allow schools to maintain sex-separate sports teams but may require transgender persons to have access to bathrooms and locker rooms consistent with their gender identity. The court found that the 2024 Title IX rules “ignore[] fundamental biological truths between the two sexes” and therefore “deprive[] women and girls of meaningful access to educational facilities.”  

What’s Next? 

Although both courts analyzed only a small number of provisions in the 2024 Title IX Rules, they enjoined the enforcement of any portion of the regulations. The Kentucky court explicitly refused to “sever” the LGBTQI+ protections from the remainder of the rules. 

We anticipate that the federal government will appeal the courts’ decisions to the U.S. Courts of Appeals for the Fifth Circuit (which would hear the Louisiana case) and the Sixth Circuit (the Kentucky case). Ordinarily, when a court finds a problem with a regulation, it will sever specific provisions and not block the remaining portions. For example, the new rules clarify the grievance process. Although the procedural rules relating to grievances are not affected by the court’s analysis of the substantive definition of sex discrimination, both courts enjoined their enforcement. There is a reasonably good chance that an appellate court will scale back the injunctions and allow certain portions of the 2024 rules to take effect. 

Meanwhile, sixteen other states, including Texas, are suing ED in five other courts to halt the implementation of the new Title IX rules. We are monitoring those cases and will provide updates on titleixtips.com.  

Should schools in states affected by the injunctions proceed with implementing new policies or providing employee training?

We will address these and related questions on June 26 at 1:00 p.m. CDT at our complimentary webinar: Attorneys General Fought the New Title IX Rules: The Clash Between States & the Department of Education.   You can register for that webinar here.

Contact your Thompson & Horton attorney or our Title IX team at titleix@thlaw.com with any questions.