The U.S. Supreme Court on Friday denied a request by the Biden administration to partially curb injunctions that are blocking its new Title IX regulation in 26 states and at least some schools in every other state.
In an unsigned opinion, the court said that the administration had failed to show that the bulk of the new regulation could be separated from three challenged provisions that newly define sex discrimination to cover sexual orientation and gender identity.
鈥淥n this limited record and in its emergency applications, the government has not provided this court a sufficient basis to disturb the lower courts鈥� interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule,鈥� the court said in its .
All nine members of the court agreed that the states and other challengers of the regulation were at least procedurally entitled to preliminary injunctions blocking the three key provisions, which include a definition of sex discrimination that includes gender identity.
However, four members of the court dissented over blocking the entire rule.
鈥淭hose injunctions are overbroad,鈥� Justice Sonia Sotomayor wrote in the partial dissent, joined by Justices Elena Kagan, Neil M. Gorsuch, and Ketanji Brown Jackson. 鈥淏y blocking the government from enforcing scores of regulations that [states and others] never challenged and that bear no apparent relationship to [challengers鈥橾 alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here.鈥�
New Title IX rules are blocked in 26 states and at individual schools in all others
The Supreme Court mulled the emergency requests for almost four weeks, and well beyond the Aug. 1 effective date of the new regulation interpreting Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in federally funded educational programs.
The court鈥檚 Aug. 16 action still leaves a confusing and disjointed map where the regulation鈥攚hich for the first time explicitly protects LGBTQ+ students from discrimination鈥攊s in effect.
The emergency requests covered injunctions by two courts that completely blocked the new rule from taking effect in 10 states. Other courts have issued similar injunctions blocking the entire rule in an additional 16 states, and the Supreme Court鈥檚 decision will presumably keep those other injunctions in place.
One such injunction that wasn鈥檛 specifically before the high court, issued by a federal judge in Kansas, blocks the regulation in four states but is also in force at any school across the nation attended by the members of three groups that joined the challenge鈥擬oms for Liberty, Young America鈥檚 Foundation, and Female Athletes United. Those lists include schools in all 24 states not covered by a statewide injunction.
That injunction significantly expands the geographic scope of where the new Title IX regulation is blocked. And the list of schools subject to that injunction is growing and includes at least a few schools in every state plus the District of Columbia. The Kansas judge has allowed those groups to recruit new members and add their children鈥檚 schools to the list.
There was no immediate reaction from the Biden administration, but U.S. Secretary of Education Miguel Cardona on Aug. 1 told stakeholders in a webinar that he 鈥渓oudly and unapologetically鈥� rejects the 鈥減oliticization鈥� of the regulation.
U.S. Solicitor General Elizabeth B. Prelogar in July asked the high court to allow most of the Title IX rule to take effect on Aug. 1, even as the Biden administration went along with pausing some challenged provisions that touch on gender-identity discrimination.
The Education Department regulation clarifies for the first time that Title IX protects students based on sexual orientation and gender identity. It also expands protections for pregnant and postpartum students, offers stronger language about retaliation, and sets out new grievance and due process procedures.
鈥淢ost of the rule does not address gender identity,鈥� , citing the other provisions.
The solicitor general told the court the administration was OK, for now, with allowing the injunctions to block two provisions that deal with gender identity while it continues to fight them in appeals courts. One of those deals with restrooms, locker rooms, and other sex-separated spaces in education, making clear that transgender students may use restrooms, for example, that align with their gender identity. The other provision Prelogar was fine with leaving blocked clarifies that 鈥渉ostile-environment harassment鈥� in schools would cover gender identity.
But Prelogar did seek to halt the injunctions with respect to the broad new definition of sex discrimination to include gender identity.
Supreme Court notes lower courts are moving ahead on merits of Title IX lawsuits
The states and others challenging the new regulation argued that the new definition pervades the entire new regulation and provisions could not be easily separated into what could take effect and what could not.
鈥淭he states challenged the whole rule鈥� and 鈥渁re injured by the whole rule,鈥� the state of Tennessee .
On those points, the Supreme Court majority appeared to agree.
鈥淭he government [has not] adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect,鈥� the majority said in its unsigned opinion.
The majority noted that the 6th Circuit has expedited its consideration of the merits arguments in the Tennessee-led case and has scheduled oral arguments for October.
鈥淭he court expects that the Courts of Appeals will render their decisions with appropriate dispatch,鈥� the Supreme Court opinion states.
In her nine-page dissent, Sotomayor outlined the significance of some of the provisions the solicitor general sought to make effective now, including the pregnancy and retaliation provisions and language that bars schools from 鈥渇rom making a preemployment inquiry as to an applicant鈥檚 marital status and limits the circumstances under which a school may make a preemployment inquiry as to an applicant鈥檚 sex.鈥�
鈥淎t this juncture,鈥� Sotomayor said, 鈥渆njoining the application of any other part of the rule needlessly impairs the government from enforcing Title IX and deprives potential claimants of protections against forms of sex discrimination not at issue in [the challengers鈥橾 suit.鈥�
