Cases & Developments

Memorandum Opinion and Order granting-in-part Plaintiffs’ Motion for Preliminary Injunction.  Plaintiffs, the state of Texas and two professors, challenged the Department of Education’s new Title IX Final Rule and sought preliminary injunction, alleging that it exceeds the statutory authority of Title IX, is arbitrary and capricious, and violates the First Amendment. In granting the injunction, the court found that plaintiffs were likely to succeed on the merits of their claims that (1) the Department’s extension of the definition of sex-based discrimination to include discrimination on the basis of sexual orientation or gender identity exceeds statutory authority under Title IX and is arbitrary and capricious; (2) the Final Rule’s ambiguity as to whether “misgendering” creates a hostile environment or is sex-based harassment would chill the professors’ protected speech in violation of the First Amendment; (3) the requirement that Texas provide insurance coverage for abortions in violation of its own law is arbitrary and capricious; and (4) several provisions on grievance procedures are arbitrary and capricious in their departure from due process, including permitting a single-investigator model, ambiguity as to whether schools must give parties access to evidence, and making live hearings and questioning optional.  The injunction is limited to the state of Texas and the two individual plaintiffs.   

Memorandum and Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the states of Kansas, Alaska, Utah, and Wyoming, three organizations with student members in the plaintiff states and beyond, and one female middle school student from Oklahoma, sought to enjoin the Title IX Final Rule, alleging that the Department impermissibly defined “sex discrimination” to include discrimination on the basis of gender identity. The court found that plaintiffs were likely to succeed in their claims that (1) the definition is inconsistent with the meaning of “sex” in the statute; (2) the Department violated the major questions doctrine by attempting to regulate on an issue of vast economic and political significance without clear statutory authority; (3) it violated the Spending Clause because Congress had not put recipients on notice that sex discrimination includes gender identity; (4) the Final Rule is impermissibly vague and overboard because it subjects the plaintiff organizations’ members to potential investigation and discipline for expressing their beliefs about gender identity and transgender issues, thereby likely chilling their speech; and (5) the Final Rule is arbitrary and capricious.  The court enjoined the entire rule as to the plaintiff States, the individual plaintiff, and all schools attended by individual members of the plaintiff organizations or their minor children. The plaintiff organizations have until July 15, 2024, to file notice in the record of the schools their members attend.   

Memorandum Opinion and Order granting Plaintiffs’ Motion for Preliminary Injunction. Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia sought to enjoin the new Title IX Final Rule, asserting that because it extends nondiscrimination protections to prohibit discrimination on the basis of gender identity it contravenes Title IX, violates government employees’ First Amendment rights, and is arbitrary and capricious under the Administrative Procedure Act (APA). The Christian Educators Association International and a fifteen-year-old girl, A.C., were permitted to join the States as intervenors. In granting the injunction, the court found plaintiffs and intervenors were likely to succeed on the merits of their claims, among others, that (1) the Final Rule’s requirements regarding gender identity are inconsistent with the unambiguous meaning of “sex” in Title IX and its expectation that students should receive separate treatment based on biological sex; (2) given “the ‘pervasive’ nature of pronoun usage in everyday life, educators likely would be required to use students’ preferred pronouns regardless of whether doing so conflicts with the educator’s religious or moral beliefs;” and (3) the Department did not “provide a reasoned explanation for departing from its longstanding interpretations regarding the meaning of sex and provided virtually no answers to many of the difficult questions that arose during the public comment phase.” The court found that it lacks jurisdiction to review the proposed Title IX athletics rule because it is not yet final agency action. The injunction is limited to the plaintiff States and intervenors. (N.B.: A.C., a track and field athlete from West Virginia, complains that she was asked to use the same locker room in middle school with B.P.J, the plaintiff in B.P.J. v. Bd. of Educ. (4th Cir. Apr. 16, 2024), and expects to face the same situation next year when B.P.J. starts high school.)   

Opinion affirming preliminary injunction. In June 2021, the Department of Education issued a Notice of Interpretation, Dear Educator Letter, and Fact Sheet (the “Documents”), citing the Supreme Court’s decision in Bostock v. Clayton County and extending the nondiscrimination protections of Title IX to prohibit discrimination on the basis of gender identity and sexual orientation. Plaintiffs, twenty states with policies treating students differently based on biological sex, sued and sought preliminary injunction, alleging that the Documents are unlawful under the Administrative Procedure Act (APA), Title IX, and the U.S. Constitution. The district court granted the injunction as to the plaintiff States. In affirming, the Sixth Circuit first found that the States were likely to establish standing by showing injury to their (1) proprietary interest as operators of educational institutions that must now address new forms of discrimination or risk loss of federal funds if they continue to enforce current policies; (2) sovereign interest in enforcement of their own laws that will not be preempted; and (3) procedural rights to attempt to influence the Department through notice and comment rulemaking. In holding that the States are likely to succeed on the merits on their claim that the Documents are legislative rules requiring notice and comment rulemaking, the court found that the Documents carry out an express delegation of authority of Congress, impose new duties on the States, and the Fact Sheet indicates a change in the Department’s position about providing different facilities for students based on their biological sex.   

Memorandum Ruling granting Plaintiffs’ Motions for Preliminary Injunction. The States of Louisiana, Mississippi, Montana, and Idaho, sued the U.S. Department of Education and sought preliminary injunction of the Department’s new Title IX Final Rule, asserting violations of the Administrative Procedure Act (APA), the First Amendment, and the Spending Clause. In finding the Final Rule is contrary to law, the court first held that Bostock v. Clayton County does not extend beyond Title VII to reach Title IX, noting the split among the courts and lack of binding federal jurisprudence on the question. Then, finding “nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/or women,” it found that the Department exceeded its authority by extending the definition of “sex discrimination” to include discrimination based on gender identity, sex stereotypes, sexual orientation, or sex characteristics. It found that the Final Rule’s “severe or pervasive” standard likely violates the First Amendment because it “allows for one political ideology to dominate the educational landscape.” It then found that the Final Rule attempted to decide a “major question” without congressional authorization and violated the Spending Clause because it contains ambiguous provisions and violates constitutional provisions. Finally, it found the Final Rule arbitrary and capricious for inadequately addressing relevant factors or aspects of the problem such as the effect of the expanded definition of harassment on cisgender students. The injunction is limited to the plaintiff States.   

Memorandum Opinion and Order granting Plaintiff’s Motion for Summary Judgment. In June 2021, the U.S. Department of Education issued a Notice of Interpretation, Dear Educator Letter, and Fact Sheet (the “Guidance Documents”), citing the Supreme Court’s decision in Bostock v. Clayton County and interpreting the nondiscrimination protections of Title IX to prohibit discrimination on the basis of gender identity and sexual orientation. The State of Texas sued, seeking vacatur of the Guidance Documents and permanent injunction on their enforcement or implementation. In granting summary judgment in favor of the State and awarding the requested relief, the court first held that the Guidance Documents are contrary to law and exceed the Department’s authority, finding that (1) the statutory text uses “sex” to mean biological sex and “identifies many situations in which differential treatment and separation is permissible;” (2) the Guidance Documents conflict with or undermine provisions of Title IX; and (3) the Department exceeded the clear-statement requirement of the Spending Clause to give the States congressional notice of their obligations and attempted to decide a major question properly left to Congress. It rejected the Department’s application of the underlying reasoning of Bostock to Title IX, noting that “Bostock stated without equivocation that it’s holding only applies to Title VII.” It further held that the Guidance Documents “constitute a substantive rule—rather than interpretive statements—subject to the APA’s notice and comment rulemaking process.”