January 2025:
The MLO Minute: “District Court Invalidates 2024 Title IX Regulations”
By Dennis McAndrews, Esq., Founder and Managing Partner Emeritus —
On January 9, a federal judge in the Eastern District of Kentucky entered an order vacating the 2024 Title IX regulations (the Final Rule). The case is Tennessee v. Cardona.
Published in April 2024, the Final Rule, among other things, expanded the concept of discrimination “on the basis of sex” under Title IX to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” The Final Rule redefined the term “sexual harassment” to encompass both “sexual harassment and other harassment on the basis of sex”. It also expanded protections for students based on “past, current, or potential parental, family, or marital status” and pregnancy or related conditions, and required schools to provide accommodations for students who are pregnant, lactating, or have pregnancy-related conditions.
The district court found the Department exceeded its statutory authority in 2024 by expanding the definition of “on the basis of sex” to include “gender identity.” The district court found the Final Rule involved constitutional infirmities, including: (a) violating the First Amendment by requiring Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender, (b) being vague and overbroad because it uses terms that render Title IX recipients unable to predict what conduct violates the law; and (c) violates the Spending Clause by conditioning receipt of federal funding on the prohibition of discrimination on gender identity.
Remarkably, instead of vacating only the questioned portions of the Final Rule, the district court vacated it in its entirety. The court did not address the profound implications of doing so, leaving school administrators adrift about the compliance of their current Title IX policies.
Does the court’s action vacating the Final Rule mean that no Title IX regulations are in place? That is difficult to answer, since the prior 2020 regulations were vacated when the 2024 Final Rule was created. Some commentators, however, assert that vacating the Final Rule means that the prior Title IX regulations, implemented in 2020 (the 2020 Rule) once again became the applicable regulations. Some courts which have addressed the consequences of vacating regulations have concluded that “[v]acating or rescinding invalidly promulgated regulations has the effect of reinstating prior regulations.” But this is hardly determinative of this unique situation.
Moreover, the district court’s vacation of the Final Rule, including regulations that explicitly prohibited harassment on the basis of gender identity, does not eliminate other protections for gender identity which exist under the law. The U.S. Supreme Court in Bostock v. Clayton County, Ga., 590 U.S. 644 (2020) held that Title VII bars employment discrimination based on sexual orientation and gender identity, concluding that “homosexuality and transgender status are inextricably bound up with sex,” and “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”. Numerous courts have held that courts “construe Title VII and Title IX protections consistently.” Applying Bostock, courts have found that Title IX bars discrimination based on sexual orientation or gender identity under Title IX, irrespective of any agency rule. Additionally, state laws such as the Pennsylvania Human Relations Act may offer protections similar to those provided in the now-invalidated Final Rule. And Cardona does nothing to forbid schools, including private schools, from enforcing their own policies prohibiting various types of gender discrimination.
Finally, protections similar to those found in the invalidated Final Rule still exist in the Pregnancy Discrimination Act, which bars discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” In addition, almost all states have significant pregnancy protections.
Now schools will need to determine how to proceed in addressing allegations of sexual misconduct and discrimination. Many schools will likely revert to the procedural protections of the 2020 Rule, such as requiring live hearings and cross examination in a great many cases. Schools which switched to a “single investigator” model for issues previously covered by a live hearing requirement, will likely revert back.
Further adding to this confusion is the unknown effect of the major 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo, in which the Court overturned the long-standing Chevron doctrine, which required courts to defer to agency regulations and interpretations of ambiguous laws. The ruling was a major shift and allows courts to ignore agency regulations and render their own interpretations of statutes such as Title IX, which itself is only a brief statement prohibiting sex discrimination in schools that accept federal funding, thus essentially providing federal courts with a largely blank canvas upon which to paint their own interpretations.
As educational institutions assess this murky situation, they will ask the new Department of Education to issue expedited guidance on Title IX in light of the decision, and in the interim many will likely revert to their prior Title IX policy, at least with respect to essential procedural issues. Schools must now be particularly vigilant in consulting both federal and state law and watching carefully for evolving judicial precedent to determine what obligations exist when addressing alleged misconduct on the basis of sex, gender identity and pregnancy status.
