As schools and colleges head back to school, a key civil rights protection guaranteeing nondiscrimination is being litigated in courts across the country.

A U.S. Supreme Court decision on Aug. 16 will allow injunctions against the Biden Administration’s updated Title IX regulations to stand without limitation.

The regulations aim to prevent sex and gender discrimination in federally funded schools, including protections for LGBTQ+ students, personnel, and applicants. 

What is Title IX?

Title IX originally passed in 1972 to offer protections against sex-based discrimination in education programs or activities that receive federal funding.

When and why was it updated?

The updated regulation – which was issued in April and took effect on Aug. 1 – aims to extend protections against discrimination, harassment, and violence related to pregnancy or related conditions, sex stereotypes, sexual orientation, gender identity, and sex characteristics.

It also requires schools to take “prompt and effective action” against all sex-based discrimination while protecting those exercising their Title IX rights from retaliation. 

Here is the updated regulation.

Here is the press release on the updated regulation.

Where have there been lawsuits?

Republican attorneys general filed lawsuits in federal courts primarily contesting three provisions of the updated regulations found in 34 Code of Federal Regulations, including:

• §106.10 (2023), which defines sex discrimination, 
• §106.31(a)(2), which prohibits schools from preventing individuals from accessing certain sex-separated spaces consistent with their gender identity, and 
• §106.2’s definition of hostile environment harassment.

The attorneys general also sought injunctive relief, which means they asked the judges for their states to not have to enforce these provisions while the lawsuits were being litigated.

Currently, in 26 states, courts have held that the regulations do not have to be followed while the cases are heard in court. These states include: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. 

In some of the cases, however, the court said the entire rule, including 40 provisions in Title IX that had not been challenged, do not have to be enforced while the lawsuits proceed.

Why is the updated regulation being contested? 

“Several States and other parties sought preliminary injunctions against the new rule, arguing among other things that the rule exceeded the bounds of the statutory text enacted by Congress,” the Supreme Court’s order reads. 

What’s the impact of the recent order by the U.S. Supreme Court?

With school getting ready to start nationwide, the U.S. Department of Education asked the U.S. Supreme Court to decide whether the bulk of Title IX – including the provisions that were not challenged – remains enforceable while litigation proceeds in 10 states. Those states are Louisiana, Mississippi, Montana, and Idaho included in one case, and Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia, all included in another case. 

The department made three arguments:

1. The injunctions were overbroad.
2. “The harm is particularly acute here because Title IX is one of the core federal civil rights statutes that guarantees nondiscrimination in the Nation’s education system,” and the Department of Education would be unable to enforce the provisions that were not challenged.
3. In other federal districts, the courts have had “no trouble concluding that discrimination against transgender persons is sex discrimination.”

With regards to the three contested provisions, the U.S. Supreme Court issued a unanimous order allowing the injunctions to stand. 

But in a 5-4 decision, the Court said the injunction for the whole regulation remains in place in the 10 states while the lawsuits proceed. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson in a dissent said, “Those injunctions are overbroad,” arguing that uncontested parts of the regulation should be enforced. 

Here is the order.

Here is the application in the Louisiana case and here is the application in the Tennessee case.

North Carolina did not seek an injunction but some schools are exempt from the regulations. Why? 

Hundreds of schools, colleges, and universities in the remaining 24 states without injunctions — including North Carolina — are exempt from the updated regulations because of a judicial decision.

Federal District Judge John Broomes in Kansas issued a ruling that blocks the updated Title IX regulation from taking effect in schools where a student or parent is a member of any of these three groups: Young America’s Foundation, Female Athletes United, and Moms for Liberty.

These groups were plaintiffs in the Kansas case. The plaintiffs alleged the updated Title IX could violate students’ First Amendment rights by compelling them to use correct pronouns for trans and non-binary students and staff while keeping them from expressing their views on gender identity. 

Plaintiffs also took issue with the updated Title IX rules, alleging they could allow transgender students to enter spaces such as sex-separated bathrooms or locker rooms that don’t align with their sex assigned at birth. 

A total of 205 North Carolina public, private, and charter K-12 schools are exempt from using the new Title IX protections. You can see the full list here. 

A total of 19 North Carolina colleges and universities are also exempt from the new rules. The full list can be found here. 

Where can school districts in North Carolina turn for guidance?

The N.C. School Boards Association is providing guidance to school districts on implementation.