Appeals courts keep new Title IX rule blocked in 10 states during appeals

The Fifth and Sixth circuits rejected DOJ's requests on the Biden administration's new sex discrimination rule. Also: SCOTUS stopped an execution on Tuesday.

Two federal appeals courts on Wednesday rejected requests from the Justice Department to narrow lower-court orders blocking enforcement of the Biden administration’s new Title IX education nondiscrimination rule to cover just the parts of the rule that the plaintiffs in the case actually challenged.

A 2-1 ruling out of the U.S. Court of Appeals for the Sixth Circuit means the entire rule remains blocked for now in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia when the rule is set to go into effect on August 1.

Hours after the Sixth Circuit’s ruling, the U.S. Court of Appeals for the Fifth Circuit, in another 2-1 ruling similarly rejected a similar partial stay request. That ruling means the entire rule remains blocked in Idaho, Louisiana, Mississippi, and Montana.

DOJ had sought a partial stay of a district court’s preliminary injunction — issued a month ago — while it appeals the case. As DOJ argued before the Sixth Circuit, “The court plainly erred in enjoining provisions of the Rule that plaintiffs do not argue are unlawful.”

Chief Judge Jeff Sutton (a George W. Bush appointee), joined by Judge Alice Batchelder (a George H.W. Bush appointee), denied that request on Wednesday over the dissent of Judge Andre Mathis (a Biden appointee) in the Sixth Circuit.

In the Fifth Circuit, Judges Edith Jones (a Reagan appointee) and Kyle Duncan (a Trump appointee) denied the request, while Judge Dana Douglas (a Biden appointee) would have granted it.

The rule is, primarily, being challenged across the country due to its protections for transgender students — a disturbing sign of the times.

Sutton — who has previously upheld laws banning same-sex couples from marrying and banning transgender minors from obtaining gender-affirming medical care — dispatched DOJ’s request in a dismissively brief nine-page ruling that is alarming for how he treated both the substance of the challenge and the procedural posture of DOJ’s partial stay request.

The only good news is that, per Sutton’s opinion, the merits appeal itself — set to be argued in October — will go to a different panel.

The Fifth Circuit’s order was per curiam, meaning “for the court” and unsigned, and Douglas did not write in dissent.

[Update: This report was updated after initial publication, with the final update at 7:05 p.m., to include information about the Fifth Circuit’s ruling.]

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Substantively, Sutton is extremely dismissive of the argument that sex discrimination banned by Title IX includes a ban on gender identity discrimination.

It is appalling that federal judges are falling all over themselves to all but ignore the Supreme Court’s 2020 decision in Bostock v. Clayton County that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 includes a ban on discrimination on the basis of sexual orientation or gender identity.

As I’ve discussed in my prior coverage of the Title IX rule challenges, courts ignore the import and impact of Bostock by pointing to that fact that Justice Neil Gorusch’s decision for the court asserted that it was not deciding matters not before the court at that time. Yes, Gorsuch said the decision was not addressing other laws — but that is because it wasn’t a case about those others laws. Courts wanting to limit Bostock use that, however, as an excuse not to faithfully apply the logic and reasoning of Bostock to other laws — which is what courts should do.

Instead of careful consideration, Sutton rejects the Education Department’s definition of “sex” in Title IX as likely going beyond the department’s authority in two paragraphs.

“As many jurists have explained, Title VII’s definition of discrimination, together with the employment-specific defenses that come with it, do not neatly map onto other areas of discrimination,” Sutton wrote — citing Gorsuch’s concurring opinion in last term’s Harvard affirmative action case at the Supreme Court; two opinions from Judge Barbara Lagoa, a Trump appointee on the U.S. Court of Appeals for the Eleventh Circuit; and a dissent from Judge David Stras, a Trump appointee on the U.S. Court of Appeals for the Eighth Circuit.

With that, Sutton then goes big, declaring his end point here:

Title VII’s definition of sex discrimination under Bostock simply does not mean the same thing for other anti-discrimination mandates, whether under the Equal Protection Clause, Title VI, or Title IX.

It’s an astounding act of judicial self-aggrandizement in which Sutton is drawing conclusions of law not only about an issue briefed quickly on a partial stay request, but also about matters not before the court at all.

Sutton goes further on this front in a sense, repeatedly praising the opinions of U.S. District Judge Danny Reeves (a George W. Bush appointee) in the case as “a thorough 93-page opinion” granting the preliminary injunction and, then, “yet another thorough opinion” rejecting the partial stay request sought at the district court level.

A long opinion, however, is not necessarily a “thorough” one. Only a judge committed to rejecting Bostock’s application to Title IX could call Reeves’s opinions “thorough.”

As I wrote previously about Reeves’s injunction, perhaps the worst aspect of it was how it treated Bostock. Not only did it ignore the logic and reasoning of Gorsuch’s opinion for the court, it cited Justice Sam Alito’s dissent — repeatedly. Reeves wrote of Alito’s “compelling dissent,” explaining that Alito “proclaimed the majority’s opinion de facto legislation.” Yes, and he lost. It was a dissent.

A month later, Sutton praised Reeves’s misdirection handiwork as “thorough” in keeping the administration’s rule blocked during the appeal.

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Second, as to the procedure.

Mathis put it well — compelling, even — in dissent, so I’ll just quote him here:

Injunctive relief should be tailored, specific, and no broader than necessary. The district court’s preliminary injunction does not satisfy those requirements. Therefore, I would stay the injunction except for prohibiting the Department from enforcing the three provisions Plaintiffs have challenged.

It’s really that simple. The scope of an injunction — a preliminary injunction in particular — has to be aimed at protecting the specific interests claimed.

Despite that, Sutton, essentially walks around those requirements, asserting that “the problem is that” the three provisions challenged “appear to touch every substantive provision of the Rule.”

The plaintiffs could have challenged those other provisions directly. They didn’t. Instead, they challenged the three provisions addressing protections of transgender students — the definition of sex; the related definition of sex-based harassment; and a provision that prohibits trans-exclusive policies by asserting that such policies create more than “de minimus harm,” which is prohibited under the rule.

When you consider that, Sutton’s ruling on Wednesday appears even harder to justify under law. As Mathis wrote:

The Justice Department had earlier suggested it was seeking a quick ruling from the Sixth Circuit so that it could seek Supreme Court review if it chose to do so.

Law Dork will certainly have more on that if the department does so.

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Stay of execution

The U.S. Supreme Court stopped an execution this week.

Ruben Gutierrez, who Texas was seeking to kill on Tuesday, remains alive Wednesday, due to an order of the Supreme Court — the latest of multiple trips the case has taken to the high court.

Do not, however, think that this represents any shift on the court about the death penalty. It was, instead, yet another example of the U.S. Court of Appeals for the Fifth Circuit run amok and the Supreme Court pulling it back.

The court’s Tuesday order was a stay of execution, and the stay will remain in effect while the justices consider whether to take up Gutirrez’s appeal. Due to the timing of the stay, regardless of what the justices do with the case, this means that Texas is blocked from carrying out the execution throughout the summer because the justices won’t meet again to consider whether to take up cases again until late September.

Beyond that, though, the current 6-3 conservative court only rarely issues stays of execution — which itself signals a strong interest in the underlying case. Moreover, doing so technically means that a majority of the court thinks certiorari is likely to be granted and that the Fifth Circuit’s decision in Gutierrez’s case will be reversed.

That, in turn, takes us to the issue at the Fifth Circuit. This is not, again, a question of whether the death penalty is constitutional or a challenge to the state’s method of execution. Instead, Gutierrez’s lawyers assert that the Fifth Circuit ignored Supreme Court precedent when holding that Gutierrez lacked standing to challenge the state’s implementation of its DNA testing law.

In other words, this is a challenge over whether Gutierrez, convicted for the 1998 murder of Escolastica Harrison, can bring a challenge relating to the state’s implementation of its DNA testing law.

If that sounds familiar, it is because the Supreme Court decided such a case in 2023 — involving Rodney Reed, another Texas death row inmate challenging his conviction. The court, in a 7-2 opinion by Justice Brett Kavanaugh, ruled that Reed could bring his challenge.

Less than a year later, a three-judge panel of the Fifth Circuit held, in a 2-1 decision, that Gutierrez’s case is different. Judge Leslie Southwick, joined by Judge Catharina Haynes (both George W. Bush appointees), held that Gurierrez lacked standing to challenge the implementation of the DNA provision.

Over the course of 14 pages, Southwick first wrote of the Supreme Court’s decision in Reed’s case, “That analysis initially seems equally applicable here,” but then pivoted, concluding that an earlier Texas court opinion in Gutierrez’s case distinguished his case from Reed’s case and meant Gutierrez lacked standing to bring the federal court challenge.

Judge Stephen Higginson (an Obama appointee) wrote in dissent that he didn’t see “a meaningful distinction” between the two cases: “Because the standing analysis of Reed applies here, Gutierrez, also facing execution, has standing to bring suit.“

In the fall, the justices will consider whether to take up the case. If they agree with Higginson, this case could be a candidate for summary reversal — meaning the court would not hold more briefing and arguments on the case, but, instead, reverse the appeals court on the basis of the certiorari-stage briefing because the appeals court’s error is so clear.