SCOTUS's order on the Title IX sex discrimination rule, explained

Anti-trans politics powered the challenges, but the federal judiciary did this — from the conservative high court to far-right lower court judges empowered to act out.

The problems of today’s federal judiciary have been clear for some time, but the U.S. Supreme Court’s order allowing lower courts to block the Biden administration’s entire 423-page sex discrimination education rule while litigation continues brought many of those problems together in a jarring way that further highlights how incredibly imbalanced today’s judiciary is.

At its base, the August 16 ruling is an order from five justices allowing anti-transgender arguments to block an entire multifaceted federal rule — regardless of the fact that very little of the rule addresses transgender protections.

Within the rule, challengers have focused on three parts: a definition of sex discrimination that includes gender identity discrimination and provisions addressing “sex-separated facilities” and “hostile-environment harassment,” both of which include language that provides protections for transgender students.

The underlying challenge to the transgender protections is weak at best, under the law. Due to the realities of today’s lopsided conservative judiciary, however, the Biden administration put that to the side during appeals in an attempt to get the injunctions blocking the entire rule narrowed so that at least some of the rule’s protections could be enforced where the rule has been blocked during litigation.

Even that effort failed.

All of this does not mean the Title IX rule is going away — but nor are the challenges. All of these cases are still early on, with the first appellate argument scheduled for October on the Justice Department’s appeal of one of the preliminary injunctions. In the meantime, though, the Supreme Court has made it clear that lower courts can block the entire rule during the course of the litigation. As it stands, that has happened in 26 states and hundreds of schools in other states across the nation as students return to school.

The August 16 order is powered by the anti-trans politics of the day, but it is made possible by far-right lower court judges who have been empowered previously — and yet again in the order — by the majority of the Supreme Court. The order also highlighted further systemic difficulties — and questions about how the Democratic appointees on the court are handling this moment.

These are not problems or questions that are going away.

As I’ve written about previously, the right, from Chief Justice John Roberts on down, is setting up contingent planning — two divergent paths it can take depending on who wins the White House in November.

A question that the Title IX rule order raised for me is whether the Democratic appointees on the court might be doing the same — and what that would look like when it is three doing so.

Regardless of what the justices are doing, however, the order made clear how necessary it is for the left to be making its own two-path contingency preparations. And to do so openly and aggressively in these next two and a half months.

What do we have here?

The rule at issue was promulgated under Title IX of the Education Amendments Act of 1972 and had been a long time coming. To the extent states are complaining about this being a new issue or being caught off guard, that’s just a lie.

The underlying issues in dispute — primarily relating to the transgender nondiscrimination protections — had been the subject of policy and guidance in the Obama administration, which was withdrawn by the Trump administration. A new version of the guidance was issued by the Biden administration. Later, a broader proposed rule — addressing many issues in addition to sexual orientation and gender identity discrimination — was publishing in July 2022. Finally, after receiving and considering comments, a version of that became the final rule, which was announced April 19 and published in the Federal Register on April 29.

In the middle of all of this, the U.S. Supreme Court decided Bostock v. Clayton County in 2020. In that ruling, the court held that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 included sexual orientation discrimination and gender identity discrimination. Justice Neil Gorsuch wrote the majority decision for the 6-3 court, in which he was joined by the then-four Democratic appointees and Chief Justice John Roberts. Important to this is that this argument was not new then. It had been accepted by the Equal Employment Opportunity Commission for nearly a decade at that point, and lower courts had, for even longer, accepted versions of the argument in constitutional challenges under the Equal Protection Clause.

What happened with the rule?

As I’ve detailed extensively at Law Dork, the right — both Republican-led states and far-right organizations — began filing lawsuits carefully in conservative jurisdictions, initially even in ways aimed at getting particular judges, to block the rule.

Every district court judge save one did so, and the one who didn’t — Judge Annemarie Axon (a Trump appointee in Alabama) — had her ruling almost immediately blocked “administratively” by an unidentified panel of the U.S. Court of Appeals for the Eleventh Circuit.

The U.S. Courts of Appeals for the Fifth Circuit and Sixth Circuit denied the Justice Department’s requests for partial stays of those injunction during appeals, leading to the Supreme Court request. In the meantime, the rule went into effect on August 1 — although it remained blocked in 26 states and hundreds of schools in other states¹ under the various preliminary injunctions.

At the Supreme Court, the request remained pending. In it, DOJ had noted that the challengers did not even discuss most of the rule in their challenges that were focused on the three transgender-related provisions. DOJ also argued that the plaintiffs claimed no additional harm that they would suffer as to the definition itself if the other provisions in question were enjoined. Such “irreparable harm” is part of the standard for granting injunctions, and, without it, DOJ argued that the court should stay the injunction insofar as it blocked the definition and blocked the unchallenged parts of the rule.

The challengers, as had been echoed in the lower courts, argued in response that the definition permeates the rule and, as such, the whole rule must be enjoined. As to the unchallenged parts of the rule, this is called a severability argument.

“This Court ordinarily does not intervene when lower courts agree on the question presented,” a Louisiana school board represented by the far-right Alliance Defending Freedom argued to the justices. “Here, that is true as to the scope of the injunction as well as the unlawfulness of the Rule.”

What happened Friday?

On Friday, the Supreme Court completely rejected DOJ’s request.

On a 5-4 vote, the court rejected DOJ’s request that the unchallenged provisions of the rule be allowed to go into effect. This was extraordinary, and required a strong deference to the appeals courts regarding the severability question. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson disagreed with that conclusion in a dissent by Sotomayor. (The opinion was a partial dissent due to one point of agreement with the majority; more on that below.)

The unsigned, per curiam opinion — which was on behalf of Chief Justice John Roberts and Justices Clarence Thomas, Sam Alito, Brett Kavanaugh, and Amy Coney Barrett — used the most obtuse language possible to reject the relief sought by DOJ:

DOJ, the majority announced, did not give the court “a sufficient basis to disturb the lower courts’ interim conclusions“ that severability was inappropriate here.

As Sotomayor explained in dissent, however, “By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here.” She spent much of the dissent describing parts of the rule that went unchallenged and were unrelated to the harms claimed by the challengers. And yet, the entire rule is now blocked in those jurisdictions under an injunction.

What the majority did is important — but so are the cause and its potential effects.

The lower courts here felt free to block the entire rule because the conservatives on the Supreme Court have empowered lower-court judges to do as they wish, tossing out precedent and ignoring procedural rulings as they desire in efforts to move the law right. And while those lower courts have ultimately been reversed on occasion when they go too far, the reversals hide the reality that the Supreme Court also lets stand or even affirms many other extreme rulings that move the law significantly rightward.

The August 16 order represents a further evolution of this move-the-law-further-rightward relationship between this Supreme Court majority and the lower courts: Far-right lower courts’ orders blocking a federal rule are themselves a justification for the Supreme Court keeping it blocked for a year or longer during litigation.

This is precisely what ADF asked the Supreme Court to do for the Louisiana school board it is representing, and that’s what it got.

That, however, is not all that happened Friday.

What was the court “unanimous” on?

You might have heard, from some corners, that this was a unanimous ruling against the transgender protections in the Title IX rule.

It was not.

In the per curiam opinion, it stated:

Importantly, all Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.

In her opinion dissenting in part, Sotomayor wrote in a similar section:

Every Member of the Court agrees respondents are entitled to interim relief as to three provisions of that Rule: 34 CFR §106.10 (2023) (defining sex discrimination), §106.31(a)(2) (prohibiting schools from preventing individuals from accessing certain sex-separated spaces consistent with their gender identity), and §106.2’s definition of hostile environment harassment. Respondents’ alleged injuries flow from those three provisions.

This has been used to claim incorrectly that the court ruled unanimously against those provisions.

Although I’ve no doubt that some of it is bad-faith rhetoric or at least overly aggressive posturing, there is reason for confusion. It comes from several aspects of this situation — including the specifics of DOJ’s request, the status of the litigation, and the stilted language in the August 16 order (including from Sotomayor).

The Justice Department did not ask the Supreme Court to block the injunctions regarding the sex-separated spaces or hostile environment harassment provisions during the appeal. These were not DOJ’s appeals to the Supreme Court; they were requests for partial stays of the preliminary injunctions during the appeals below. DOJ made clear it will defend those two provisions on appeal in the lower courts, but it was not seeking to enforce them during those appeals. In other words, there was no debate now at the Supreme Court over those provisions.

As such, the only point on which the partial dissent — and this is what made it partial — differed with the Justice Department was as to whether the definition was appropriately blocked during an appeal in which the two other provisions were to remain blocked.

On this, Sotomayor did not provide much by way of explanation. All that she wrote was that “[r]espondents’ alleged injuries flow from those three provisions.” It is possible that the view was that one couldn’t fully block the other two provisions — which, again, DOJ wasn’t challenging at the Supreme Court right now — without blocking the underlying sex discrimination definition. It is possible that the four in the dissent had different views of why the definitional provision shouldn’t be stayed. We don’t know.

Regardless of what it was — and there is an unfortunate lack of clarity — it was not a substantive view on the provisions given that DOJ was not seeking to enforce two of the three provisions at this time and Sotomayor gave no suggestion that she was making any judgment on the substance of the definitional provision. Even the per curiam opinion only referred to its view of the likelihood of DOJ’s success on its “severability argument” — not on the DOJ’s likelihood of success on its arguments in favor of the merits of the rule.

Finally, it is important to note that Sotomayor did explain why keeping the definition blocked during appeals was not, in the dissent’s view, the biggest deal:

In other words, Sotomayor wrote, the definition isn’t needed to enforce the rule.

This was not the most clear opinion. All that I can say is that it is difficult — given the current court, the unusual posture of this case, and the upcoming arguments over Tennessee’s ban on gender-affirming medical care for minors — to imagine all of the moving pieces that figure into the nine pages Sotomayor issued on behalf of the four. It is entirely possible that one or more of those elements led to what we got and the reasons for it will only become clear moving forward.

And, of course, she was not just writing for the three Democratic appointees. Gorsuch also joined.

What is up with Gorsuch?

This was the big question when the order came out — and we won’t know the answer immediately.

Gorsuch wrote the Bostock majority opinion, so he could be of the view that the Education Department’s rule is substantively correct. Or, he could just be of the view that the injunctions were way too broad given the challenges — something that he has previously opined on.

In April, Gorsuch wrote an opinion concurring in the Supreme Court’s decision to limit an injunction blocking Idaho’s ban on gender-affirming medical care for minors to only cover the plaintiffs in the case. His opinion was focused on the dangers of “universal injunctions” and the importance of district court injunctions being tailored to the parties.

Although he was joined in that opinion by Thomas and Alito, those two did not join him on August 16.

What about Roberts, Kavanaugh, and Barrett?

There are lots of arguments for how we could look at the votes of the three justices who joined Thomas and Alito’s predictable votes rejecting DOJ’s request on August 16. Ultimately, I think the three most immediately relevant points of reference are two concurring opinions written by Barrett in recent months and one by Kavanaugh.

In April, Kavanaugh, joined by Barrett, concurred in that decision about Idaho’s gender-affirming medical care ban, focusing on concern about the “scope of the injunction.”

Barrett’s opinions, though, have focused on pulling back a bit. In a March order in a case over a harsh Texas immigration law that is clearly unconstitutional under current precent, Barrett, joined by Kavanaugh, explained her view that, regardless of any views on the merits, the Supreme Court should not get into the practice of disrupting appeals courts’ administrative stays. In June, in the Idaho case over emergency room abortion care protections, Barrett, joined by Roberts and Kavanaugh, essentially acknowledged that the court had been overly aggressive in taking the case from an appeals court because there was still too much that was unclear about the underlying Idaho abortion ban and the effect of the relevant federal law on it.

It does appear that Barrett and Kavanaugh are open to diminishing the role of the shadow docket. And yet, both were OK not diminishing its role when it came to limiting an injunction favored by the left.

Beyond that, though, diminishing the role of the shadow docket itself is not a value-neutral decision — as is seen here. If there are a number of far-right district court judges and extremely conservative appeals courts willing to block rules outside of their districts or states or even nationwide, choosing to create norms against the Supreme Court infringing on lower courts’ rulings by way of the shadow docket benefits the right.

OK, but why did it take so long?

This is a good question.

Of course, since the decision ultimately changed nothing on the ground for now, the timing didn’t particularly matter.

That said, it’s still very unusual for a government request pegged to the effective date of a policy to go unanswered for more than two weeks beyond that effective date even though it was brought to the court on July 22 and fully briefed by July 29.

The brevity of the three-page per curiam opinion and nine-page dissent is not likely a reflection of what was happening behind the scenes. There could be stark differences on the underlying rule — and not necessarily in the same vote alignment. That all could have taken time to work out.

The decision delay also could suggest efforts to change votes and, potentially, the outcome; a justice uncertain of their vote; or a shift that took place — either among the justices or within one of the two opinions (or both).

For now, what this all means is that the entire Title IX rule is blocked in more than half of the states in the country and at hundreds of schools in other states. With no timeline for that to change.

1. This aspect of the orders went unremarked in the per curiam or partial dissent, but is a fact that I’ve covered at length at Law Dork.