Schools Face Conflicting Federal and State Pressures Under Final Title IX Rule

Shortly after the Department of Education (the “Department”) issued its new Title IX regulations (the “Final Rule”) in April, states across the country filed lawsuits to prevent the Final Rule from going into effect. In particular, states challenged the Final Rule’s “broad interpretation” of sex-based discrimination to include discrimination on the basis of sex stereotypes, sexual orientation, gender identity, and sex characteristics. The Department’s interpretation relied, in part, on the United States Supreme Court’s decision in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), which held that Title VII forbids employers from discriminating against employees on the basis of sexuality or gender identity. Bostock left open, however, whether its holding applied to other federal anti-discrimination laws, such as Title IX.

Final Rule Litigation

Practically speaking, the Final Rule’s interpretation of sex discrimination broadened protections for LGBTQ+ students across the country. Those protections are now in question after two district courts issued preliminary injunctions barring the Final Rule from going into effect in certain states. The first injunction, issued by a Louisiana District Court on June 13, 2024, halted the Final Rule’s implementation in four states: Louisiana, Mississippi, Montana and Idaho. Louisiana v. U.S. Dep’t of Educ., 2024 WL 2978786 (W.D. La. June 13, 2024). A Kentucky district court issued the second injunction on June 17, 2024, barring the Department from enforcing the Final Rule in Kentucky, Ohio, Indiana, Virginia, and West Virginia. Tennessee v. Cardona, 2:24-cv-00072-DCR-CJS (E.D. Ky. June 17, 2024) (order granting preliminary injunction).

In both cases, the states argued that the Final Rule was contrary to law under the Administrative Procedure Act (the “APA”) and that the Department’s interpretation of sex discrimination exceeded its statutory authority under Title IX. Both courts found that the Final Rule’s definition of sex discrimination was contrary to Title IX, and the Department’s reliance on Bostock was misguided since the Bostock holding does not expressly apply to Title IX. See Louisiana v. U.S. Dep’t of Educ., 2024 WL 2978786 at *12. The Louisiana court interpreted Title IX’s ban on “sex discrimination” to apply to discrimination experienced only by “biological women.” Id. The Kentucky court likewise concluded that “‘sex’ and ‘gender identity’ do not mean the same thing” and the Department’s interpretation exceeded its rulemaking authority under Title IX. Tennessee v. Cardona, 2:24-cv-00072-DCR-CJS, at *91-92. Both courts also found that the states were likely to succeed on the merits of their First Amendment free speech and free exercise clause claims, as well as their claims under the APA that the Final Rule is arbitrary and capricious. At least 15 other states have similar lawsuits pending.

2021 Department Guidance Litigation

The Louisiana and Kentucky injunctions came in the midst of prior challenges to the Department’s 2021 guidance on the scope of sex discrimination, which also relied on Bostock to provide that Title IX protected students from discrimination based on sexual orientation and gender identity. Two courts recently struck down the 2021 guidance: a Texas district court and the Sixth Circuit. Texas v. Cardona, 2024 WL 2947022 (N.D. Tex. June 11, 2024); Tennessee v. U.S. Dep’t of Educ., 2024 WL 2984295 (6th Cir. June 14, 2024). The issues presented in those cases were slightly different than those presented in the cases involving the Final Rule, given the Final Rule had not been issued at the time they were initiated. Therefore, neither decision directly implicates the Final Rule. However, similar to the Louisiana court, the Texas court found that “Title IX exclusively uses the biological understanding of ‘sex’ throughout its provisions.” Texas, 2024 WL 2947022 at *31.

In light of these developments, the question remains—what are schools to do? For some schools, the answer will be easy because they are located in states that are not challenging the Final Rule. But schools in states that oppose the Final Rule face a difficult choice, with potential risks on both sides of the equation.

Many schools may feel pressure from their state governments not to comply. For example, several state governors have announced that they will not follow the Final Rule and will put political pressure on institutions that choose to abide by school policies that align with the guidance in the Final Rule, even if the Final Rule is enjoined in their state. This places schools in a difficult situation where they must balance many competing objectives.

O’Melveny’s Education Industry Group is well positioned to discuss these issues and provide guidance in this area. The Group continues to monitor developments related to the litigation challenging the Final Rule and will provide updates as additional information becomes available.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California, Anton Metlitsky, an O’Melveny partner licensed to practice law in New York and the District of Columbia, Kim Williams, an O’Melveny partner licensed to practice law in Texas, David Cohen an O’Melveny counsel licensed to practice law in New York, Marni Robinow, an O’Melveny counsel licensed to practice law in California, Jennifer B. Sokoler, an O’Melveny counsel licensed to practice law in New York, and Anna M. Rotrosen, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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