The new Title IX regulations that roll back due process rights for accused students and require institutions to adopt further policies supporting gender identity (“trans”) matters have been temporarily halted in ten states. This comes as the result of two federal court orders:

• A June 13^th injunction by Judge Terry Doughty in U.S. District Court for the District of Louisiana. This order affects the states of LA, MS, MT, and ID.
• A June 17^th injunction by Judge Danny Reeves in U.S. District Court for the Eastern District of Kentucky. This order is limited to TN, KY, OH, IN, VA, and WV.

These injunctions apply to the regulations in their entirety as opposed to specific sections. Numerous subsections of the regulations contained “severability clauses” that claimed they would not be affected if other sections were “held invalid” by the courts. Judge Danny Reeves disagreed, holding that such severability clauses have “little impact on the Court’s analysis because the impermissible definition of ‘discrimination on the basis of sex’ in 34 C.F.R. § 106.10 permeates the remaining regulations.”

The Biden administration has challenged both injunctions by appealing them to the Sixth and Fifth Circuit appellate courts. It has also filed motions to stay the effects of the injunctions until the appeals are resolved. As of this morning, neither judge has issued an order granting either motion.

If the Biden administration is successful in its motion for a stay, then the regulations will go into effect on August 1 in all 50 states – assuming other courts do not block them. If it is unsuccessful, it is more likely that the appeals will not be resolved before August and the regulations will only go into effect in 40 states – again, assuming other courts do not block them.

It is noteworthy that the Trump-era Title IX regulations that provided greater due process to accused students survived five out of five federal court challenges while the Biden regulations now have multiple adverse rulings. Of course, the plaintiffs challenging the Biden regulations filed in courts likely to produce a favorable ruling, but so did those who challenged the Trump regulations; their lawsuits were filed in the Northern District of California, the District of Massachusetts, and the Southern District of New York.

It is also interesting that one of the complaints does not mention due process at all (it focused on gender identity), yet it resulted in an injunction that would prohibit the sections that cut back on due process from going into effect. This means the Department of Education’s attempt to redefine sex has clearly jeopardized its attempt to strip due process from the accused. If it focused solely on stripping away due process it might have a more defensible position, but it instead decided to push further.

The Rationale

An injunction requires a balancing test of four factors: whether the plaintiffs will be irreparably harmed if it is not issued, whether they are likely to succeed on the merits of their claims, a “balance of harms” between the parties if the injunction is or is not issued, and the public interest. I will focus on the likeliness of success on the merits.

Judge Doughty agreed with the plaintiffs that their lawsuit was likely to succeed because the new rule is contrary to established Title IX law, the Department of Education (ED) exceeded its authority, and its rulemaking was arbitrary and capricious.

In the new regulations, the Biden administration attempted to change the definition of sex to include gender identity and expand protections for trans-identifying individuals in an education context under Title IX. But as Judge Doughty said:

When interpreting a statutory term, the Court must interpret the words in a manner consistent with the ordinary meaning at the time Congress enacted [Title IX]…the term ‘sex discrimination’ only included discrimination against biological males and females at the time of enactment.

Furthermore, the Biden administration relied on a Supreme Court decision in Bostock v. Clayton County, but that decision only applies to employment discrimination under Title VII of the Civil Rights Act of 1964, not to Title IX.

The new regulations also attempted to expand the definition of harassment. The definition set forth by the Supreme Court for Title IX matters in Davis v. Monroe County Board of Education is conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

By contrast, the Biden administration’s definition in the new regulations is

…conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.

The introduction of subjectivity, “or” statements, and the lowering of the bar from conduct that denies a person’s access to education to conduct that merely “limits” it (an incredibly flexible and subjective word in itself) would radically expand the definition of harassment.

Put simply, Title IX is about access to education on the basis of sex. It is not about punishing every inconvenient or rude thing said or done on or off-campus on the basis of sex. The new rule sharply veers into that territory with First Amendment implications.

Judge Doughty also invoked the major questions doctrine regarding the Department of Education’s authority to “rewrite Title IX.” This doctrine “provides that an agency is not authorized to make decisions of vast economic and political significance without specific congressional authorization.” He said:

Congress only gave Defendants the authority to issue rules, regulations, or orders to ‘effectuate the provisions of [Title IX]’ that “shall be consistent with the achievement of the objectives of the Statute.” However, as discussed above, Defendants are attempting to circumvent Congress by using Bostock to make major changes in Title IX law. Such changes are inconsistent with the text, structure, and purpose of Title IX.

Judge Doughty also held that the final rule is arbitrary and capricious under the Administrative Procedures Act. Under the Chevron doctrine, whenever a statute is ambiguous, administrative agencies have the authority to resolve the dispute – but they must “operate ‘within the bounds of reasonable interpretation.’” Further, “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” Judge Doughty held that ED did so here.

The cherry on top is this paragraph by Judge Doughty describing ED’s insufficient response to public feedback:

Finally, despite receiving more than 240,000 comments, including numerous comments opposing the proposed rule, Defendants only made minor changes to the proposed rules. Many of the comments pointed out the problems the Final Rule had, including, but not limited to, no authority, ambiguity, violation of the Spending Clause, violation of First Amendment Free Speech and Free Exercise rights, and lack of religious exemptions. Despite the comments, the Final Rule did not change anything regarding those issues.

For context, the 240,000-comment figure is the estimated total number of comments after the Department of Education deleted anywhere from 150,000 to 200,000 comments by the public. ED attributed it to a “clerical error.”

While Judge Reeves’ decision was similar to Judge Doughty’s in that it held ED exceeded its statutory authority in its attempt to redefine sex and ran afoul of the major questions doctrine, he spent considerably more time on the free speech implications of the final rule.

Over the next week, the parties will file briefs in district court arguing whether a stay of the injunctions is warranted. Until then, the regulations remain blocked in ten states. We will post major updates on these lawsuits when they occur.