Title IX Mess: Injunction Junction, What’s Your Function?

If there was one word to sum up the Title IX regulations over the last five years, it would be…

SIGH.

First, President Trump

In May 2020, President Trump’s administration issued new Title IX regulations. In the midst of Covid-19, schools scrambled to revise their policies and create new investigatory procedures.

Then, the Supreme Court

In June 2020, the Supreme Court ruled in Bostock v. Clayton County that employment discrimination on the basis of “sex” included protections for gay and transgender people. This was limited to Title VII, but Title VII has the same language as Title IX.

Then, President Biden

By January 2021, President Biden’s administration promised to roll back many of Trump’s changes to Title IX and memorialize protections for LGBTQIA+ students.

In April 2024, after we heard “We promise new Title IX rules are coming!” for years, the new rules were finally released. They protected LGBTQIA+ students, pregnant and parenting students, and changed procedures and definitions.

Schools again scrambled to revise Title IX policies and procedures within 104 days: They had to be compliant with the new 2024 rules by August 1, 2024.

Then, Red States Sued

Within a week of the new Title IX rules, lawsuits by conservative groups and states popped up all over. At current count, 26 states and conservative organizations like Moms for Liberty have sued the federal government to stop the implementation of these regulations.

Their main (only) concern? The 2024 regulations explicitly protect LGBTQIA+ students, effectively codifying in administrative law the protections under Bostock.

Now, the Injunctions

At this time, 2 judges have issued preliminary injunctions (“pause buttons”) that apply to 10 states: ID, IN, KY, LA, MS, MT, OH, TN, VA, and WV. State of Tennessee, et. al. v. Cardona et. al. (E.D. KY 2024); State of Louisiana et. al. v. Department of Education (W.D. LA 2024).

An injunction is a court order requiring someone to either perform or stop performing a specific action. In this case, these preliminary injunctions mean that schools in those 10 states (and probably more, when it’s all said and done) CANNOT implement the 2024 regulations and must stick with the 2020 version.

The injunctions stopped the WHOLE application of 2024 Title IX regs in those 10 states, NOT ONLY the LGBTQIA+ protections.

But Four States Are Special

In the midst of all this ping-ponging over the last handful of years, several federal courts have already decided that Title IX does, indeed, protect LGBTQIA+ students.

Schools in 17 states in the 4th, 7th, and 9th Circuits have solid federal court rulings that Title IX protects LGBTQIA+ students. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, 2023 WL 4881915 (7th Cir. 2023); G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020); Grabowski v. Arizona Board of Regents, 69 F.4th 1110 (9th Cir. 2023).

Although the U.S. Supreme Court had its chance, it has refused to hear (or overturn) any of these cases thus far.

Here’s the rub.

Seventeen states (on the right) have Title IX protections for LGBTQIA+ students through cases decided by the highest level of federal court under the U.S. Supreme Court (4th, 7th, and 9th circuits) between 2017-2023.

Ten states (on the left) have preliminary injunctions to not enforce the 2024 Title IX regulations, which protect LGBTQIA+ students, at lower-level federal courts (E.D. KY and W.D. LA).

Four states overlap.

In these 4 states (Indiana, Montana, Virginia, and West Virginia), Title IX continues to protect LGBTQIA+ students regardless of the status of the preliminary injunction.

If you are in one of these 4 states, consult with local attorneys. There are parts of the 2024 Title IX regulations that should be adopted as best practices, regardless of the injunctions, like coordination between an IEP Team and Title IX Coordinator when a situation involves a student with a disability.

Schools can likely hold off on creating new policies and procedures, but must continue protecting LGBTQIA+ students under Title IX. Which has the bonus of being the right thing to do anyway.

It’s not like we have anything else going on.

These preliminary injunctions (and others yet to be decided) will continue to move through the federal courts, perhaps even reaching the U.S. Supreme Court at some point.

Remember, the U.S. Supreme Court has already ruled in Bostock that “sex” under Title VII applied to gay and transgender employees, so it is unlikely that the court would rule profoundly differently under Title IX (the court has not dramatically shifted ideologically since its 2020 Bostock ruling: the majority opinion in Bostock was written by Trump-nominated Justice Gorsuch).

In the midst of this mess, we’ll have a national election, a U.S. Supreme Court ruling about the Chevron Doctrine, and God knows how many other state laws regarding LGBTQIA+ students.

Buckle up, folks. It’s going to be a bumpy ride.

Imprint Legal Group advises schools on Title IX compliance and gender inclusive school cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.

All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of June 22, 2024.