The Biden administration on Monday asked the Supreme Court to temporarily put on hold a portion of two orders issued by federal trial courts in Louisiana and Kentucky that prohibit the Department of Education from enforcing any part of an April 2024 rule implementing Title IX of the Education Amendments of 1972, which bars sex discrimination in education programs that receive federal funding.
The two challenges—originally filed in Louisiana by four states (Louisiana, Mississippi, Montana, and Idaho, along with the Louisiana Department of Education) and in Kentucky by six states (Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia) – focused on three provisions of the April 2024 rule, which target discrimination against transgender people.
The first provision recognizes that Title IX’s ban on sex discrimination includes discrimination based on gender identity. The second provision makes clear that schools violate Title IX when they bar transgender people from using bathrooms and locker rooms consistent with their gender identity. And the third provision defines “hostile-environment harassment” to include harassment based on gender identity.
In June, the Louisiana district court blocked the Department of Education from enforcing any part of the 2024 rule in the four states bringing the challenge. The district court in Kentucky did the same for the six states involved in that challenge. Federal appeals courts in New Orleans and Cincinnati then turned down the federal government’s request to allow it to temporarily enforce all of the rule, with the exception of the latter two provisions targeting discrimination against transgender people – which, the government said, are the source of the injuries that the challengers allege — while its appeals continued.
In a pair of filings, U.S. Solicitor General Elizabeth Prelogar urged the justices to intervene. She emphasized that the 2024 rule is an “omnibus” regulation that addresses a wide range of issues, unrelated to discrimination against transgender people, that the states have not challenged. Moreover, she added, when it issued the rule, the Department of Education intended each provision to stand alone. The district courts’ orders blocking the enforcement of the entire rule, she contended, therefore sweep too broadly to block “dozens of provisions that” were not before the courts. Such a “blunderbuss approach to preliminary relief,” she maintained, is “both wrong and consequential.”
Challenges to the 2024 rule are also pending elsewhere, including in Texas, Kansas, Alabama, Oklahoma, and Missouri.
