Two federal appeals courts have denied requests by the U.S. Department of Education to set aside lower court injunctions that block the new Title IX regulation from taking effect on Aug. 1 in 10 states.
The procedural rulings this week by the appeals courts based in Cincinnati and New Orleans are significant because they preview how those courts might rule on the merits of the underlying challenges to the new rule. And they suggest that, barring intervention by the U.S. Supreme Court, the new Title IX regulation addressing sexual orientation and gender identity, sexual harassment, and other issues will take effect in only a patchwork of the nation come Aug. 1.
The challengers argue, among other things, that the new rule鈥檚 support for transgender students is not consistent with the text of Title IX, which prohibits sex discrimination in federally funded schools.
The Title IX rule has been blocked in five states other than those included in the appeals court rulings, and it is being challenged in 10 more. One injunction, by a federal district judge in Kansas, blocked the rule in four states but also at any school or college, no matter which state they are in, where children of members of three challenging groups attend.
Divided appellate panels rule on procedural issues, but at least one gives a hint on the merits
The two courts to reject the Biden administration鈥檚 efforts to stay the injunctions were the U.S. Court of Appeals for the 5th Circuit, in New Orleans, and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.
A panel of the 5th Circuit on July 17 ruled 2-1 in a challenge brought by Louisiana, Idaho, Mississippi, and Montana, as well as numerous Louisiana school districts. (Idaho and Montana are not in the 5th Circuit, but several challenges to the Title IX rule have been brought by groups of states from different appellate jurisdictions.)
The 5th Circuit鈥檚 ruling is somewhat procedural in nature. The majority rejected arguments by the Education Department that the injunction should apply only to the challenged provisions and not the entire regulation.
鈥淲ith no briefing or argument below on the consequences of a partial preliminary injunction, we would have to parse the 423-page rule ourselves to determine the practicability and consequences of a limited stay,鈥� the majority said.
鈥淭he DOE has not shown that it would suffer irreparable injury if the district court鈥檚 injunction were not partially stayed,鈥� the panel said. 鈥淭he injunction pending appeal does not prevent the DOE from enforcing Title IX or longstanding regulations to prevent sex discrimination. The DOE can hardly be said to be injured by putting off the enforcement of a rule it took three years to promulgate after multiple delays.鈥�
Judge Dana M. Douglas said she would grant the Education Department鈥檚 motion, but she did not issue a written dissent.
(The 5th Circuit鈥檚 decision did not apply to the other state in its jurisdiction, Texas, but a federal district judge in that state has blocked the Title IX rule in a case brought by the state.)
6th Circuit majority suggests Education Dept. on shaky ground to rely on Supreme Court鈥檚 Bostock decision
The 6th Circuit鈥檚 July 17 decision in was also 2-1, but the majority gave more of a hint on how it viewed one of the key issues in the case鈥攚hether the Education Department is properly interpreting Title IX to protect gender identity. The case was brought by Tennessee, Kentucky, Ohio, Virginia, and West Virginia (with the latter two states being in a different circuit).
鈥淎s we see it, the district court likely concluded correctly that the rule鈥檚 definition of sex discrimination exceeds the department鈥檚 authority,鈥� Judge Jeffrey S. Sutton wrote for the majority.
He suggested the Education Department was mistaken to rely on the U.S. Supreme Court鈥檚 2020 decision in in support of its provision that gender identity is protected by Title IX. Bostock held that discrimination in the workplace based on sexual orientation or gender identity was prohibited by Title VII of the Civil Rights Act of 1964.
鈥淭itle VII鈥檚 definition of sex discrimination under Bostock simply does not mean the same thing for other anti-discrimination mandates,鈥� Sutton said.
Judge Andre B. Mathis partially dissented. He said he would grant the department鈥檚 motion for a partial stay because it sought, for now, to limit the injunction to defined gender-identity provisions instead of blocking the entire new regulation.
鈥淚njunctive relief should be tailored, specific, and no broader than necessary,鈥� he said.
The Biden administration has sought, or is expected to seek, similar stays of other district court injunctions blocking the Title IX rule. But now that two federal appeals courts have denied the bids to set aside two of those injunctions, the administration could proceed to the Supreme Court on the emergency docket and seek action from the justices.
