The Evolving Landscape of Title IX Protections in Education

On August 1, 2024, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, one of the final Title IX regulations of the U.S. Department of Education released on April 19, 2024, will go into effect. The new regulations address the previous administration’s rollback of Title IX protections, and include, among other things, an expanded definition of sex discrimination that provides new protections for LGBTQ+ individuals against discrimination on the basis of sexual orientation and gender identity. For example, the new rules prohibit schools that receive federal funding from barring transgender students’ use of pronouns that correspond to their gender identities, or denying transgender students access to facilities, like locker rooms and restrooms, that match their gender identities. Other notable changes in the new regulations include the following: (1) protection from all sex-based harassment and discrimination, including that based on sex stereotypes, sexual orientation, gender identity, or pregnancy or related conditions; (2) broadening the definition of “hostile environment” harassment to include conduct that is so severe or pervasive that it limits or denies a person’s ability to participate in the education program or activity; (3) increased accountability by requiring schools to take prompt and effective action to end any sex discrimination in their education programs or activities, prevent reoccurrence, and remedy its effects; and (4) protection against retaliation for students, employees, and others who exercise their Title IX rights.

In announcing the new regulations, the Department of Education explained that “[t]he final regulations advance Title IX’s promise of ensuring that no person experiences sex discrimination, including sex-based harassment or sexual violence, in federally funded education.” The new Title IX regulations do not address Title IX’s application to athletics, which the U.S. Department of Education intends to address in a separate final rule.

In response to the new regulations, Republican state attorneys general from 26 states—Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming—brought lawsuits to challenge the new rules. The lawsuits all assert similar claims, arguing that the Secretary overstepped the Department’s authority in enacting the new regulations by violating the Administrative Procedures Act (the APA), and the Spending Clause of the First Amendment to the U.S. Constitution, particularly as the new rule relates to protections for LGBTQ+ students.

Specifically, these lawsuits include arguments that the new Title IX regulations (1) violate the APA because they exceed the Department of Education’s statutory authority (e.g., it has no authority to “redefine”  the term “sex” to include gender identity and sexual orientation), are not in accordance with law, and are arbitrary and capricious; (2) constitute an impermissible exercise of legislative power under Article I, Section 1 of the Constitution because the new regulations interfere with Congress’s power to pass laws; (3) violate the First Amendment to the Constitution because the new regulations compel employees at federally funded schools to acknowledge and validate transgender students’ gender identities and pronouns; and (4) violate the Spending Clause of the Constitution because, among other reasons, the new regulations are not related to the federal interest and violate the plaintiffs’ state sovereignty.

In late May, a coalition of sixteen Democratic state attorneys general (the Coalition), led by the attorneys general in California, New Jersey, and Pennsylvania, filed an amicus brief in support of the U.S. Department of Education’s 2024 Title IX Final Rule.

The Coalition’s amicus brief argues the following: (1) the rule’s definition of sex and sex discrimination is consistent with Title IX’s plain text and the U.S. Constitution; (2) the rule’s definition of hostile environment sex-based harassment is appropriately defined in a manner that effectuates Title IX; (3) the rule does not violate the Spending Clause of the U.S. Constitution; and (4) the Amici States’ experience confirms that the Final Rule will yield broad benefits without compromising privacy or safety, or imposing significant costs.

Challenges to the rules are widespread. Most recently, on June 11, 2024, the U.S. District Court for the Western District of Louisiana granted a preliminary injunction blocking the new rule from taking effect in Idaho, Louisiana, Mississippi, and Montana. Days later, on June 17, 2024, the U.S. District Court for the Eastern District of Kentucky followed suit, ruling that the government overstepped its authority in expanding the definition of “sex” to include gender identity, and granting a preliminary injunction blocking the new rule from taking effect in Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia. Decisions on preliminary injunctions to block the new rule from taking effect are also pending in the U.S. District Court for the Eastern District of Missouri (Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota); the U.S. District Court for the District of Kansas (Alaska, Kansas, Utah, and Wyoming); the U.S. District Court for the Northern District of Alabama (Alabama, Florida, Georgia, and South Carolina); the U.S. District Court for the Northern District of Texas (Texas); and the U.S. District Court for the Western District of Oklahoma (Oklahoma).

Our State AG and Education attorneys will continue to stay apprised of Title IX developments. For weekly updates on recent State AG matters, sign up for Crowell & Moring’s State AG blog here.