Supreme Court Extends Title IX Injunction, Reinforces Bias Against Transgender Students 

On August 16, 2024, with little fanfare, the Supreme Court ruled that the temporary injunction against implementation of the 2024 Title IX Regulations should not only be continued, but also be extended to the whole of the Regulations, blocking enforcement of the new Regulations and reinforcing discrimination and bias against transgender and homosexual students.

By their ruling, the Supreme Court has robbed all students in the ten states that, so far, have joined the injunction litigation, of protection under the new Title IX Regulations. 

In a 5-4 per curiam decision, Justices Alito, Kavanaugh, Thomas, Barrett, and Chief Justice Roberts voted to uphold the lower court decisions concerning injunctions for three provisions of the new Regulations, but now, noting the difficulty of severing those objectionable provisions, also totally blocking enforcement of any part of the Regulations in the states of Louisiana, Mississippi, Montana, Idaho, Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia. Other states have also indicated that they may join with these ten.

The three provisions of the 2024 Title IX Regulations that prompted Louisiana and Tennessee to sue the Department of Education for an injunction are the following:

• 34 C.F.R. § 106.10 Scope [of Title IX]. Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

• 34 C.F.R. § 106.31 (a)(2). Education Programs or Activities. In the limited circumstances in which Title IX or this part permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm [except as permitted by the listed sections of the Regulations]. Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.

• 34 C.F.R. § 106.2 Definitions. The phrase “Hostile environment harassment” is defined under the definition of “Sex-based harassment, as follows:

Hostile environment harassment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.

Four dissenters, Justices Sotomayor, Kagan, Jackson, and Gorsuch, criticized the overbreadth of the High Court’s ruling, stating that, at most, only those three elements of the new Title IX needed to be stayed with the injunction. 

However, despite the arguments posed by Louisiana and Tennessee, the two lead plaintiffs in the suits calling for the injunction, are simply based on the Department of Education’s inclusion of transgender identity and sexual orientation as protected categories under the scope of Title IX. 

The Supreme Court ignored this invidious discrimination despite the fact that in 2020, in a 6-3 decision involving Title VII, Bostock v. Clayton County, Georgia, and written by Justice Gorsuch, the Court had ruled that discrimination “on the basis of sex” includes discrimination on the basis of sexual orientation or gender identity, because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” On May 26, 2021 a letter from the Department of Justice reinforced and extended the Title VII decision, stating that “After considering the text of Title IX, Supreme Court caselaw, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.”

In singling out the definition of hostile environment harassment, moreover, the plaintiff states argue that the 2024 definition conflicts with statutory language in Davis v. Monroe County Board of Education  pertaining to violations of Title IX, “watering down” the standards used to judge violations of Title IX to “severe or pervasive” instead “severe and pervasive,” as in Davis. However, conduct that constitutes actionable hostile environment harassment has always differed in the administrative enforcement of Title IX as opposed to in-court pleadings of violations, and, in fact, the “or” conjunction gives more, not less, protection from violations of Title IX.

In extending this injunction, the Supreme Court forces a “fallback” to the Trump administration’s 2020 Title IX which seriously diminished students’ reporting of sexual harassment by the requirement of complainants’ filing a formal complaint with the institution’s Title IX Coordinator, for both formal and informal resolution of their complaints. The 2020 Title IX Regulations also required a costly grievance process involving at least two independent, trained individuals, an Investigator and a Decisionmaker, with the possibility of also needing a third individual if an either party filed an appeal of the Title IX decision. The Trump administration’s approach was a one-size-fits-all that even included mandatory live hearings for complaints filed in institutions of higher education.

What This Means for Your College or University

The 2024 Title IX Regulations promised to allow consideration of the size and student composition and characteristics of the educational institution receiving a complaint of, not only sexual harassment, but also of all kinds of sex-based harassment. The complainant is not required to sign a written complainant, and the institution does not have to wait for actual knowledge of the harassment. Moreover, in many schools, a trained investigator may be the only individual needed to resolve the complaint. These Title IX protections, and their Title IX funding, shall be lost to students in all states which join the protracted injunction litigation.

If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.