Title IX Injunction Expands to 21 States and Includes Iowa and North Dakota

On July 24, 2024, in The State of Arkansas v. United States Department of Education, the U.S. District Court for the Eastern District of Missouri Eastern Division issued a 54-page Memorandum and Order enjoining the U.S. Department of Education from “implementing, enacting, enforcing, or taking any action in any manner to enforce” the 2024 Title IX regulations published on April 29, 2024, against the plaintiff states of Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota.

The new regulations were to go into effect on August 1, 2024, but are now enjoined in a total of 21 states. Orders similar to the July 24 Order have already been issued in the Eastern District of Kentucky, the Western District of Louisiana, the District of Kansas, and the Northern District of Texas. The prior orders cover Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. The Kansas decision also stops enforcement of the regulations against a list of schools attended by members of Young America’s Foundation or Female Athletes United, as well as those attended by the children of members of Moms for Liberty, regardless of state.

The states’ legal challenges to the Title IX regulations focus on the Department of Education’s reliance on the definition of “sex” in Bostock v. Clayton County, decided by the U.S. Supreme Court in June 2020. In Bostock, the Court determined that employment discrimination based on sexual orientation and gender identity is prohibited by Title VII because, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” The Plaintiff states argue that workplaces differ from educational institutions, and it is therefore incorrect to apply the Title VII definition of sex to the Title IX context.

The enjoined Title IX regulations also allow schools more procedural flexibility in their Title IX policies and provide protections for pregnant and parenting students. For example, the new regulations permit colleges and universities to dispense with live hearings in certain circumstances and allow more opportunities for informal resolution of Title IX violations. They also require the provision of reasonable modifications for pregnant students and access to clean, private lactation space. So far, the courts ordering injunctions have declined to allow these changes to move forward when issuing injunctions based on arguments against the more inclusive definition of “sex.” On July 22, the Biden administration asked the U.S. Supreme Court to intervene to allow these less controversial provisions to take effect on August 1. Responses from the states challenging the new regulations are due on Friday, July 26.

Pending additional developments, educational institutions covered by the current injunctions will continue to handle Title IX violations under the regulations issued in 2020.