Legal Challenges to New Title IX Regulations Continue—With One Snag

The Biden administration’s new Title IX regulations were scheduled to go into force on August 1 of this year, but have already come under legal attack. We’ve previously covered two successful legal challenges that enjoined the enforcement of the new regulations in certain states. This week, however, other opponents of the regulations—including the states of Alabama, Florida, Georgia, and South Caroline, joined by several private advocacy groups—encountered a setback when a federal judge in the Northern District of Alabama (appointed by President Trump) denied their request for a preliminary injunction. The next day, another Trump-appointed federal district judge in Oklahoma granted a preliminary injunction in a challenge brought by that state. 

In an often sharply worded opinion in the first case, Alabama v. Cardona, Judge Annemarie Axon concluded that many of the same arguments that triumphed elsewhere—notably, that the inclusion of protections for gender identity was contrary to the “on the basis of sex” language in Title IX—were in fact unlikely to succeed. In many instances she dismissed the Plaintiffs’ arguments for failure to provide legal or factual support, or to properly present the claims to the Court. With respect to the applicability of the Supreme Court’s decision in Bostock v. Clayton County to Title IX, Axon distinguished cases from the 11th Circuit that had upheld rules separating school bathrooms by biological sex and a ban on gender-affirming care. While Plaintiffs argued that those cases foreclosed applying Bostock’s reasoning to Title IX, Axon disagreed, finding that the two cited cases were interpreting the Equal Protection Clause, not Title IX, and that nothing in the Title IX regulations conflicted with the view expressed in those cases that the term “sex” as used in the law means “biological sex.”  

In a first for these cases challenging the Title IX regulations, Axon also analyzed in detail the question of whether the new regulations’ provisions about the investigation and adjudication of sexual harassment complaints were passed in violation of the Administrative Procedure Act. The new regulations eliminate many of the procedural requirements found in the current Title IX regulations, including the requirement that schools hold a live hearing with direct adversarial cross-examination, and the requirement that there be a separate factfinder and decisionmaker. Axon concluded that these changes to the Trump-era regulations were not “arbitrary and capricious” under the Administrative Procedure Act, but did not reach the question of whether the new procedures meet constitutional due process requirements that apply to public schools. 

The outcome was different in Oklahoma v. Cardona, also decided this week, where Judge Jodi Dishman enjoined the enforcement of the new regulations as a whole within Oklahoma on grounds largely in line with the earlier decisions from courts in Kentucky and Louisiana. The judge concluded that Title IX did not apply to gender identity, even post-Bostock, despite recent binding precedent from the 10th Circuit holding that that discrimination based on transgender status counts as sex discrimination for purposes of the Equal Protection clause. She also found that the new definition of sexual harassment as “severe or pervasive” likely violated the First Amendment and that the regulations as a whole likely fell afoul of the Spending Clause and the “major questions” doctrine. The opinion prominently cited the recent decision of the Supreme Court in Lopers Bright Enterprises v. Raimondo, which struck down the doctrine of “Chevron deference” that had long limited judicial review of actions by federal agencies. This opinion serves as a reminder that future litigation about Title IX regulations will take place in a significantly changed legal landscape, one in which courts may be significantly more skeptical of administrative policy-making. 

As things stand today, the Title IX regulations that are supposed to go into effect tomorrow are blocked in Tennessee, Kentucky, Ohio, Indiana, Virgina, West Virginia, Idaho, Louisiana, Mississippi, and Montana, with at least one injunction also potentially applying to more than 2,000 individual schools in 46 states. The litigation on these regulations is likely to continue at its breakneck speed; already the plaintiffs in the Alabama case have asked the Eleventh Circuit to issue an injunction today preventing the rules from going into effect. 

UPDATE: Late in the day on July 31 the 11th Circuit granted the Alabama plaintiffs’ request to enjoin the regulations from going into effect and set a briefing schedule to have the case ready to be heard in the next week. While the scope of the injunction was initially unclear (the appellate court simply wrote “granted” in its order), the Department of Education has stated in its notice of compliance that it understands the injunction to apply only in the four states that brought the suit.

 If you or someone you know is facing discrimination or harassment based on your gender identity, is experiencing sexual harassment at school, or is involved in a Title IX proceeding, fill out our online intake form or call us at (617) 742-6020 to be connected with one of our lawyers.