BREAKING NEWS: Supreme Court Title IX Update

On July 22, 2024, the Solicitor General, Elizabeth B. Prelogar, submitted applications to the United States Supreme Court seeking partial stays on injunctions from the Western District of Louisiana and the Eastern District of Kentucky concerning the 2024 Title IX Regulations. The applications were filed after similar requests had been denied by the Fifth and Sixth Circuit Courts of Appeal.

As we have previously explained, following the Department of Education’s publication of the Final Title IX Regulations in April 2024, 26 states sued in various federal courts to prevent the implementation of the regulations—largely due to the provisions related to discrimination on the basis of gender identity. Currently, 15 states and hundreds of individual schools are enjoined from implementing the 2024 Regulations on August 1, 2024, the date the regulations are set to go into effect.  

In the applications to the Supreme Court, the Solicitor General argued that the District Courts’ injunctions were overly broad and should be narrowed to only those provisions at issue in each matter. Specifically, the Solicitor stated that “Respondents have not challenged the vast majority” of the 2024 Title IX Regulations, and rather challenged the sole issue of including gender identity as one of the "bases" of sex-based discrimination. This includes challenges to the prohibition in 106.31(a)(2) as it relates to differential treatment on the basis of gender identity, and the application of Section 106.2’s definition of hostile environment harassment to discrimination based on gender identity. The Solicitor General said that the Supreme Court should apply the rationale from its recent decision in Labrador v. Poe, 601 U.S. ____ (2024). In Labrador, the Court granted a partial stay because the lower court “clearly strayed from equity’s traditional bounds” by enjoining all provisions of a challenged state law, which the Court held to be “more burdensome” to the Defendant than necessary.

Justice Alito, and Justice Kavanaugh, assigned to the Louisiana and Kentucky cases, respectively, each requested that the injunction-seeking states file responses to the applications by July 26, 2024, at noon.

Our team is following this breaking news closely.