SCOTUS Upholds Preliminary Injunction Against Title IX Rule Granting Protections to LBGTQ Students

In Department of Education v. Louisiana, the U.S. Supreme Court refused to lift preliminary injunctions preventing the Department of Education from implementing a new rule that broadens the definition of sex-based discrimination under Title IX of the Education Amendments of 1972 to prohibit discrimination based on gender identity and sexual orientation in federally funded schools.

The Biden Administration had filed emergency applications asking the Court for a partial stay of the injunctions pending resolution of the underlying challenges.

Facts of the Case

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The statute tasks the Department of Education with “issuing rules, regulations, or orders of general applicability” to “effectuate” Title IX’s antidiscrimination mandate.

Pursuant to that authority, in April 2024, the Department issued an omnibus rule amending Title IX’s regulations, set to take effect nationwide on August 1, 2024.

Among other changes, the rule newly defined sex discrimination to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

Several States and other parties sought preliminary injunctions against the new rule, arguing among other things that the rule exceeded the bounds of the statutory text enacted by Congress. District Courts in Louisiana and Kentucky agreed with the plaintiffs and preliminarily enjoined enforcement of the rule in the plaintiff States. The Courts of Appeals for the Fifth and Sixth Circuits then declined to stay the injunctions in the interim period while those courts consider the Government’s appeals of the preliminary injunctions.

Supreme Court’s Decision

The Supreme Court unanimously agreed 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. However, they disagreed as to whether the remaining provisions should be allowed to move forward.

The majority agreed with the lower courts that the allegedly unlawful provisions are not readily severable from the remaining provisions because the new definition of sex discrimination is intertwined with and affects many other provisions of the new rule.

“The lower courts also pointed out the difficulty that schools would face in determining how to apply the rule for a temporary period with some provisions in effect and some enjoined,” the majority’s per curium opinion states.

“On this limited record and in its emergency applications, the government has not provided this court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule,” the majority added.

Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, and Ketanji Brown Jackson dissented. They agreed with the Government that the other provisions of the new rule should still be permitted to take effect while the Government’s appeals of the preliminary injunctions are pending in the Courts of Appeals.

“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,” the dissenters wrote. “The injunctions this court leaves in place will burden the government more than necessary.”

“The injunctions will also affect the public,” the dissenting justices further maintained. “Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes schools must follow in investigating their complaints of sex discrimination, of protections from retaliation should they file a complaint, and of much more.”