The Biden administration’s Title IX rule, which promises greater protections for LGBTQ students under the federal gender-equity law, is now blocked in 10 states. Federal judges have answered Republican state officials’ legal challenges with preliminary injunctions.
More than 20 states are suing over President Biden’s Title IX policy, accusing the Education Department of overstepping its authority.
The Title IX rule was released in April, nearly two years after it was proposed. The regulations reversed Trump-era live-hearing requirements for resolving complaints of sexual misconduct and broadened the scope of sexual harassment that colleges would be required to investigate. Colleges were given an August 1 deadline to comply, but the legal battles are unlikely to be resolved before then.
Though these regulatory changes are silent on the question of transgender students’ participation in athletics — which federal officials say will be dealt with in a separate final rule — the perception that the Biden administration is trying to force states to permit transgender students to compete on girls’ and women’s sports teams has proliferated and is a key reason for state officials’ opposition. Several Republican-led states have passed laws banning transgender students’ participation on athletic teams consistent with their gender identity.
Here, we take a closer look at what’s at stake for Biden’s Title IX rule, and for the college administrators responsible for retooling campus policies, during this wave of litigation.
How have judges ruled on these cases so far?
On Monday a federal judge in Kentucky blocked the rule in Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia. The decision came a few days after a federal judge in Louisiana had blocked it in Idaho, Louisiana, Mississippi, and Montana.
In his opinion, Judge Danny C. Reeves of the U.S. District Court for the Eastern District of Kentucky wrote that the Education Department “seeks to derail deeply rooted law” in its interpretation of Title IX.
The succinct law, passed in 1972, mentions “sex” but not “gender.” Biden’s rule adopted the stance that students are also protected from discrimination on the basis of gender identity and sexual orientation. Some conservatives have taken issue with that.
“The department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute,” Reeves wrote.
Elana Redfield, federal policy director for the Williams Institute at the University of California at Los Angeles’s School of Law, said the recent court rulings feature “a real disregard for the actual lives and experiences of LGBTQ people, particularly trans people.”
“When they write these decisions, they’re not even considering the harms that could happen to LGBTQ people,” Redfield said. “They’re just looking at the harms that would happen to non-trans, cisgender, straight people.”
What’s the status of the other legal challenges?
The attorneys general of Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota have also asked for a preliminary injunction against the new rule.
A spokesperson for the Education Department said it is aware of 10 legal challenges to the rule and is reviewing the most recent ruling.
“The department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student,” the spokesperson wrote in a statement.
Jody Shipper, a co-founder and the managing director of Grand River Solutions, a consulting firm that works with colleges on Title IX compliance, noted that the lawsuits are more focused on gender and sexuality than on other facets of the Biden rule — though the injunctions apply to those, too.
“The real source of ire and concern appears to be the concepts around gender identity,” she said. “I don’t see anyone saying, ‘Oh, don’t you dare have a lactation space.’”
What’s a Title IX coordinator to do?
Nationwide, Title IX administrators and other staff members are busy this summer preparing their campuses for the new rule to go into effect. Think drafting campus policies, training and hiring staff members, and updating lists of resources.
Now some practitioners are being told to stop efforts to comply with federal law — a core part of their jobs. It’s a frustrating experience, experts told The Chronicle.
“If you’re smart, you probably get everything ready and then stick it on a shelf,” said Brett Sokolow, chair of the board for TNG, a higher-ed consulting firm, and founder of the Association of Title IX Administrators. “Because if any of these injunctions is overturned, they’ll be overturned after August 1 ... and therefore, the very next day, compliance will be expected by the federal government.”
Falling out of compliance with Title IX puts federal dollars at risk. But disobeying state orders threatens getting on the bad side of a state’s top lawyer.
In states where an injunction has not been issued, but officials have committed to flouting Biden’s Title IX rule, colleges are in a tough situation, Sokolow said.
“It’s not a foregone conclusion that just because your attorney general told you not to comply, you decide not to comply,” he added. “You have to decide what are the pain points and what are the consequences.”
Falling out of compliance with Title IX puts federal dollars at risk. But disobeying state orders, of course, threatens getting on the bad side of a state’s top lawyer.
General counsels, Sokolow said, have generally told administrators to comply with state law and not risk angering attorneys general.
The Title IX director for the Texas A&M University system was suspended last month after talking to the flagship campus’s student newspaper, The Battalion, about compliance plans for the Title IX changes. The administrator, Rick Olshak, told the newspaper he was “very disappointed” that transgender students’ participation in athletics, “the most polarizing piece,” hadn’t been dealt with in this round of regulations. A conservative publication then said Olshak had “lamented” that the Title IX changes didn’t go far enough.
The Battalion updated the article with a statement from a Texas A&M spokeswoman saying the system “will not take any action to implement the new federal regulations” because of the Texas attorney general’s lawsuit against the changes.
Could Title IX go to the U.S. Supreme Court?
It’s hard to predict.
Sokolow and Shipper said the Supreme Court prefers to hear cases in which two or more appeals courts come to different decisions on a single legal issue. But these particular lawsuits aren’t really being filed in bluer circuits, narrowing the possibility of a circuit split.
“The Supreme Court would have to decide to delve into this potentially without a circuit split,” Sokolow said. “They could find one or two of these suits where the judges uphold the regs, in which case there would be something of a circuit split and that might get the Supreme Court’s attention.”
Conservative appeals courts and the current majority on the Supreme Court are keen to continue narrowing federal agencies’ regulatory authority, Sokolow said.
“Will it be a Title IX case that ultimately gets the Supreme Court to weaken or end the rule of regulations in this country — not just for Title IX, but even more broadly?” he asked.
What are colleges in the 10 states affected saying about the court decisions?
Not much so far, although The Chronicle reached a few. A spokeswoman for the University of Kentucky said the litigation would not have consequences for its nondiscrimination policy, which already includes protections against unequal treatment on the basis of sexual orientation and gender identity.
A spokesman for Indiana University’s nine campuses said the institution would keep confronting discrimination and harassment and would comply with either the 2020 or 2024 rule, “depending on current and future court rulings.” A University of Virginia spokeswoman said the institution would continue to follow 2020 regulations unless there is “final clarification” of the Biden rule.
So what’s going to happen come August 1?
Redfield, of the Williams Institute, said it is unlikely that Biden’s Title IX changes will be enforced in a “categorical way” by August 1.
Sokolow said it’s possible that a judge could issue a nationwide injunction in the next six weeks, which would invalidate the compliance deadline. He said it’s unlikely that any of the trials come to a verdict before August.
“No matter what, at least in 10 states, it seems like they will not be complying with the 2024 rules as of August 1,” he said.
Shipper said a campus in a state subject to one of the injunctions canceled a training by her firm. Her team wouldn’t have been able to definitively state which Title IX requirements the institution would have to follow in late August, when the semester begins.
“We’re all certainly hoping for some clarity,” she said. “But we may not get it in time to be ready for August 1.”
