Biden admin's Title IX sex discrimination rule goes into effect — but it's blocked in 26 states

As of mid-day Thursday, the U.S. Supreme Court hadn't even ruled on the Justice Department's request to pare back the injunctions during appeals.

When it comes to the Biden administration’s long-awaited Title IX sex discrimination education rule, which went into effect Thursday, America truly is two nations. Due to a series of lower-court injunctions, the Education Department is blocked from enforcing the rule, which includes LGBTQ school protections, in 26 states across the country.

The steps that led us to such a place over the past 50 days tell both a story of how much anti-transgender animus has made its way into the federal courts — and a story of how irrelevant the U.S. Supreme Court has made itself and its rulings through its repeated actions disregarding, minimizing, or outright reversing those rulings.

The 423-page rule that went into effect Thursday defines sex in the sex discrimination ban of Title IX of the Education Amendments Act of 1972 as including both sexual orientation and gender identity. This is reasoning that, the Biden administration argues, follows from the Supreme Court’s 2020 decision in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964’s sex discrimination ban includes bans on both sexual orientation and gender identity discrimination.

The rule also includes provisions addressing “sex-separated facilities” and “hostile-environment harassment,” both of which include language that provides protections for transgender students. The rule does much more, however, including setting for the standards for schools to use in handling sex-based harassment complaints, pregnancy protections, and setting forth general obligations under the landmark law.

That rule is now in effect, but the Education Department is blocked from enforcing it in Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. (As discussed below, the department is also blocked from enforcing the rule in more than 2,500 specific schools across the country — many of which are in the 24 states that do not have an injunction in place.)

The Supreme Court, moreover, has allowed this to happen without even ruling as of mid-day Thursday on the Justice Department’s requests in two of the cases to pare back the injunctions during appeals.

Before I dive into the specifics of how this happened, one key note: The lawsuits brought relate only to enforcement of the Title IX rule. The injunctions do not limit any state or local protections. They do not even limit any federal protections that exist outside the Title IX rule, whether based on the Constitution or federal law.

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Law Dork has covered the challenges to the Title IX rule in depth. Check it out, and share this report with friends and colleagues.

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What happened?

A series of lawsuits were filed challenging the rule, mostly brought by Republican attorneys general but also brought by some far-right organizations and primarily arguing that the rule violates the Administrative Procedure Act due to the three provisions addressing gender identity and transgender protections. They were almost all filed in jurisdictions that would increase the likelihood of a far-right judge hearing the case — and a more conservative appeals court considering appeals. The efforts paid off.

Some of the most conservative district court judges in the nation heard the challenges and granted preliminary injunctions against enforcement of the rule — including U.S. District Judges Terry Doughty, Reed O’Connor, and Matthew Kacsmaryk, known for their far-right rulings on efforts to combat misinformation on social media, the Affordable Care Act, and mifepristone, respectively, all of which were reversed by the Supreme Court. In addition to those three judges in Texas and Louisiana, four others — U.S. District Judges Danny Reeves, John Broomes, Rodney Sippel, Jodi Dishman — issued injunctions from their courts in Kentucky, Kansas, Missouri, and Oklahoma, respectively.

Doughty issued the first injunction blocking the rule, on June 13. The others followed in succession in the weeks since. Between those seven rulings, the rule was blocked in 22 states. And, importantly, despite the fact that almost all of the lawsuits only challenged the three transgender-related provisions, the judges all blocked the Education Department from enforcing any of the 423-page rule in those states.

That wasn’t even the end of it. One of those judges, Broomes in Kansas, issued an injunction that covered any school in any state attended by members of two of the organizations suing to block the ban — which includes nearly 700 colleges — and any school in any state attended by the children of the members of a third organization — which includes more than 2,000 primary and secondary schools.

Only one district court judge, U.S. District Judge Annemarie Axon, a Trump appointee in Alabama, rejected the plaintiffs’ request for an injunction — and she did so in a 122-page ruling issued July 30 that demolished the Alabama-led effort there. Even that, though, was short-lived. The next day, the day before the rule was going into effect, the U.S. Court of Appeals for the Eleventh Circuit issued a one-paragraph order granting an “administrative injunction” blocking the rule in those four challengers’ states and effectively wiping out Axon’s ruling for now. The order didn’t even state what judges authorized such an act, instead simply being issued “for the court” by the clerk.

Of the eight trial court judges to hear the challenges, only Sippel was appointed by a Democratic president. Five of the judges were appointed by Donald Trump, two by George W. Bush, and one by Bill Clinton.

When the Justice Department went to the appeals courts, it has fared no better. In addition to the Eleventh Circuit’s unreasoned order blocking the rule in four states, two appeals courts even rejected the Justice Department’s request to pare back the injunctions in two of the cases to only cover the sections of the rule that the plaintiffs challenged and claimed to be harmed by — the “sex-separated facilities” and “hostile-environment harassment” provisions. Although DOJ made clear it would continue defending those provisions as well on appeal, the requests for a partial stay of the injunctions during appeals are efforts that echo the Supreme Court’s own statements this year about how necessary it is that district courts careful tailor injunctions to the parties in front of them and the harms claimed.

The U.S. Court of Appeals for the Fifth Circuit and the U.S. Court of Appeals for the Sixth Circuit both rejected even that request — both on 2-1 votes. (For its part, the U.S. Court of Appeals for the Tenth Circuit didn’t even rule on DOJ’s request for a partial stay in the Kansas-based case — fully briefed on July 22 — before the rule’s effective date.)

On July 23, DOJ filed similar requests at the Supreme Court in response to the rulings of the Fifth Circuit and Sixth Circuit. Although fully briefed, the Supreme Court has taken no action, as of yet, on the requests.

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What’s next?

The Supreme Court should rule sometime soon on the DOJ requests.

The underlying lawsuits will continue, including briefing at the Eleventh Circuit on whether an injunction — beyond the “administrative injunction” — should be granted in that case — in which Alabama, Florida, Georgia, and South Carolina are plaintiffs — during the appeal of Axon’s ruling.

Appeals will go forward, and this rule likely will eventually reach the Supreme Court on the merits.

As with so many other aspects of American life, however, the outcome here is also in part contingent on the election, given Trump’s opposition to such transgender protections and Vice President Kamala Harris’s support for them.