DOJ asks Supreme Court to partially restore Biden Title IX rule in Republican-led states

The Department of Justice (DOJ) asked the Supreme Court to take emergency action Monday to restore parts of President Biden’s Title IX rule in a handful of Republican-led states where the new regulations are blocked, arguing that lower court injunctions pausing the rule in its entirety are “more burdensome” than necessary.

In April, the Education Department unveiled a final set of sweeping changes to Title IX, the federal civil rights law prohibiting sex discrimination in schools and education programs that receive government funding. The new rule, which covers discrimination based on sexual orientation and gender identity for the first time, drew swift criticism from Republicans who claimed the new regulations undermine the original intent of Title IX, triggering a flurry of multistate lawsuits. 

Federal judges sided with the states in three cases, preventing the administration’s rule from taking effect in 15 GOP-led states while legal challenges play out in court. The remaining states are still expected to implement the changes by Aug. 1. 

The rule is also blocked from taking effect at any school attended by the child of a member of Moms for Liberty, a conservative political group, or any school attended by members of the Young America’s Foundation, an organization for young conservatives. 

On Monday, U.S. Solicitor General Elizabeth Prelogar asked the Supreme Court to narrow district court injunctions blocking the administration’s Title IX rule in 10 states: Tennessee, Kentucky, Ohio, Indiana, Virginia, West Virginia, Louisiana, Mississippi, Montana and Idaho. 

The injunctions, she argued, should only apply to the rule’s prohibition on gender identity discrimination — the provision at the center of the lawsuits challenging the new Title IX regulations, which also bolster protections for pregnant and parenting students and change how schools handle claims of sexual harassment and assault.

States have not challenged “the vast majority” of changes made to Title IX, Prelogar wrote Monday. “Instead, they object to three discrete provisions of the Rule related to discrimination against transgender individuals,” she wrote.

Conservative states and leaders have long argued that the administration’s Title IX rule misinterprets a 2020 Supreme Court decision protecting employees from discrimination based on gender identity.

The rule has also faced criticism from Republicans for potentially requiring schools to allow transgender students to use restrooms, locker rooms and pronouns that match their gender identity, conflicting with laws passed in more than a dozen GOP-led states. 

“The district court held that respondents’ challenges are likely to succeed and issued a preliminary injunction. But the court refused to tailor the injunction to the two provisions of the Rule that are the source of respondents’ asserted injuries — or even to the three provisions they have challenged on the merits,” Prelogar wrote Monday. “Instead, the court enjoined the entire Rule, including dozens of provisions that respondents had not challenged and that the court did not purport to find likely invalid.” 

“Just a few months ago, this Court granted a partial stay because a district court had entered a sweeping preliminary injunction that flouted the fundamental principle that equitable relief must not be ‘more burdensome to the defendant than necessary to redress’ the plaintiff’s injuries,” she added, referring to a May Supreme Court decision that narrowed a lower court order to allow Idaho to enforce its felony ban on gender-affirming care for minors. 

“Several Justices warned that ‘[l]ower courts would be wise to take heed’ of that reminder about the limits on their equitable powers,” Prelogar wrote. “The lower courts here ignored that warning, and this Court’s intervention is again needed.”