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Writer's pictureRobert Lusk

Supreme Court Temporarily Blocks Implementation of New Title IX Regulations

Public educational institutions have struggled to implement Title IX regulations for several years.  The Trump administration issued a set of politically conservative Title IX regulations.  The Biden administration countered with its own set of politically liberal Title IX regulations.  The most contentious of Biden set defined sex discrimination to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”


The States of Louisiana (located in the Fifth Circuit) and Tennessee (located in the Sixth Circuit) sued to block the implementation of the new regulations.  The federal district courts agreed with the States and enjoined the new regulations as inconsistent with Title IX’s statutory definition of sex discrimination.  The Department of Education appealed and, in addition, sought orders from the Circuit Courts staying the injunctions, so the new regulations could take effect pending the resolution of the appeals.  However, the Circuit Courts declined to issue stays.


The U.S. Department of Education filed an emergency appeal from the Circuit Courts' decisions denying its requests for stays, arguing the most contentious provisions, i.e., the definition of sex discrimination, should be severed and the other regulations should be permitted to take effect.  The Supreme Court, in a 5-4 per curiam order, denied the government’s request, reasoning the government had not established the definition of sex discrimination could be cogently severed from the other regulations.


Practically, the Supreme Court’s order means the new Title IX regulations cannot be implemented in the States that challenged their validity unless and until the Fifth and Sixth Circuits reverse the district courts’ decisions.  The issue before the Fifth and Sixth Circuits (whether the regulations new definition of sex discrimination is consistent with the statutory definition) may be a close question given the Supreme Court’s recent decisions eliminating the deference courts have accorded federal agency definitions since the 1980s

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