Summary: On June 17, 2024, the United States District Court for the Eastern District of Kentucky, issued an Order enjoining the Department of Education’s new rule on Title IX in the states of Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia. Specifically, the Department of Education is “enjoined and restrained” from “implementing, enacting [or] enforcing” the new Title IX rule. The court found that the new rule, which redefines “sex” to include gender identity, contravenes the plain text of Title IX, violates First Amendment rights, and is the result of arbitrary and capricious rulemaking. The court determined that the plaintiffs are likely to prevail on the merits of their claims and that the public interest and equities favor their position. This action follows the issuance of a similar injunction on June 13, 2024, impacting Idaho, Louisiana, Mississippi, and Montana. Numerous other states also have challenged the new Title IX rule, and these challenges remain pending in various courts across the country.
Background: Title IX of the Education Amendments Act of 1972 prohibits sex discrimination in educational programs and activities receiving federal funding. The Department of Education issued a Final Rule on April 19, 2024, clarifying that discrimination on the basis of sex includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Among other changes, the Final Rule also introduced a “de minimis harm” standard, which limits the extent to which different treatment or separation on the basis of sex can subject a person to harm.
Court’s Opinion: In the June 17, 2024, ruling, the court granted the plaintiffs’ motion for injunctive relief, enjoining the Department from enforcing the new rule in the aforementioned states, including Ohio. The court found that the plaintiffs are likely to prevail on the merits of their claims and that the public interest and equities favor their position. Specifically, the court held that plaintiffs are likely to succeed on the merits of their claim that the Department of Education exceeded its authority in redefining “on the basis of sex” under Title IX. The court opined that the Department’s new rule goes beyond the scope of Title IX and redefines “sex” in a manner that is inconsistent with the plain text of the statute. The court also determined that plaintiffs were likely to succeed on the merits of their claim that the new rule violates government employees’ First Amendment rights by compelling them to use pronouns inconsistent with an individual’s biological sex. Additionally, the court concluded that the Department’s rulemaking process was arbitrary and capricious. Finally, the court held that plaintiffs would suffer irreparable harm if the Title IX rule went into effect. Among the irreparable harms cited by the court were compliance costs, loss of federal funding, interference with states’ sovereign interests and harm to citizens (i.e., violations of bodily privacy).
Implications: The court’s decision to enjoin the Department’s new rule on Title IX in six states, including Ohio, has significant implications for educational institutions and individuals affected by the rule. Until further legal proceedings occur, the current rules governing Title IX that became effective on August 14, 2020, and which do not specifically include gender identity as a protected category, remain in effect. Likewise, the current rules related to Title IX investigations and the conduct prohibited by Title IX will remain in effect in Ohio and the five other states impacted by the June 17 Order. The court’s opinion stated, “the Department’s rulemaking was arbitrary and capricious, resulting in a rule that is invalid in its entirety.” At this time, public school districts should continue to comply with the existing requirements of Title IX and applicable Board Policy, and monitor developments in this case.
Boards of education are encouraged to consult with legal counsel regarding any impact this decision may have on policy application and/or employment practices in their particular school district.
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Weston Hurd LLP attorneys regularly provide attentive counsel in all aspects of school law. For further information about this advisory, please contact any of the education law attorneys.
