The Supreme Court on Friday declined to let the Biden administration enforce portions of a new rule that includes protections from discrimination for transgender students under Title IX while legal proceedings continue.
The high court left intact two separate orders from federal courts in Kentucky and Louisiana, which blocked the Department of Education from enforcing the entirety of the rule across 10 states. The Justice Department had asked the Supreme Court to put part of the decisions on hold, but it declined the requests.
Four of the nine justices would have let part of the rules take effect, according to the order, but all members of the court agreed that the key disputed changes, including the new definition of “s*x discrimination” to include “gender identity” and the restrictions on same-s*x spaces, could remain blocked.
“[A]ll Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines s*x discrimination to include discrimination on the basis of sexual orientation and gender identity,” the Supreme Court said in its unsigned opinion.
The measure at issue in the disputes was announced by the Biden administration in April and expanded Title IX’s protections to LGBTQ students. The landmark 50-year-old law prohibits education entities that receive federal funds from discriminating on the basis of s*x. The rule took effect Aug. 1, but only in less than half of the states. Federal judges have temporarily blocked it in 26 states as a result of legal challenges.
The court fights before the Supreme Court involved two groups of states that challenged three provisions of the rule: The first recognizes that Title IX’s prohibition on s*x discrimination covers gender identity; the second broadens the definition of “hostile-environment harassment” to include harassment based on gender identity; and the third clarifies that a school violates Title IX when it prohibits transgender students from using restrooms and other facilities consistent with their gender identity.
One case was brought by four states, Louisiana, Mississippi, Montana, and Idaho, as well as the Louisiana Department of Education. The second was filed by six states, Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia.
In June, federal district courts in Louisiana and Kentucky found the states were likely to succeed in their cases and blocked enforcement of the entire rule across the 10 states involved in the litigation. The Biden administration asked federal appeals courts in both cases to allow it to temporarily enforce part of the rule — the provisions that were not challenged — but each declined the requests in divided decisions.
The Supreme Court, in response to the government’s argument that the three provisions should be severed, allowing the other unchallenged parts of the rule to go into effect, agreed with the lower courts that “the new definition of s*x discrimination is intertwined with and affects many other provisions of the new rule,” and therefore, the three provisions “are not readily severable from the remaining provisions.” It said that the government did not provide “a sufficient basis to disturb the lower courts’ interim conclusions” and had 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.”
Justice Sonia Sotomayor, joined by the liberals on the court, Justices Elena Kagan and Ketanji Brown Jackson, and by conservative Justice Neil Gorsuch, wrote in her partial dissent, “By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here.” She predicted the “injunctions this Court leaves in place will burden the Government more than necessary.”
She noted that the unchallenged provisions included “‘reasonable modifications'” that would allow new mothers to breastfeed or express breast milk or pregnant students to attend to health needs of their pregnancies. Another provision would prevent schools from making preemployment inquiries about an applicant’s marital status. These provisions, Sotomayor said, “do not reference gender identity discrimination or hostile environment harassment.” Therefore, she wrote, blocking the government from enforcing any other part of the rule “needlessly impairs the Government from enforcing Title IX and deprives potential claimants of protections against forms of s*x discrimination not at issue in respondents’ suit.”
In seeking emergency relief from the Supreme Court, the Justice Department argued that the district court’s injunctions are “grossly overbroad” because they block “dozens” of the rule’s provisions that weren’t challenged by the states, and that the lower court therefore did not find were likely unlawful.
“The district court’s injunction would block the department from implementing dozens of provisions of an important rule effectuating Title IX, a vital civil rights law protecting millions of students against s*x discrimination,” Solicitor General Elizabeth Prelogar wrote in both requests.
She said the April 2024 rule is an “omnibus” measure, and most of it does not address gender identity. Instead, its provisions include clarifications to definitions of more than a dozen terms, including “complaint,” “elementary school” and “postsecondary institution.”
While acknowledging the challenges to federal regulations before they’re enforced are common, she accused lower courts of taking a “blunderbuss approach” to preliminary relief in these cases.
“The harm is particularly acute here because Title IX is one of the core federal civil rights statutes that guarantees nondiscrimination in the nation’s education system,” Prelogar wrote. “If the court does not grant the requested stay, the department will be unable to vindicate the critical protections of that statute in a wide swath of the country.”
