Cases & Developments

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.