EMERGENCY DOCKET

Supreme Court blocks temporary enforcement of expanded protections for transgender students

The Supreme Court on Friday rejected the Biden administration’s request to be allowed to temporarily enforce most of an April 2024 rule implementing Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education programs that receive federal funding, while its appeals continued.

Friday’s ruling leaves in place for now decisions by federal appeals courts that barred the Biden administration from enforcing any portion of the rule, including three provisions that target discrimination against transgender people in schools. The Biden administration had not asked the Supreme Court to intervene with regard to two of those provisions.

The justices divided 5-4 on whether to temporarily bar the government from enforcing the entire rule. Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson. They called the lower courts’ orders “overbroad.”

The orders came in two separate challenges – one filed in Kentucky by six states and one in Louisiana by four states. Both challenges focused on three provisions of the April 2024 rule that target discrimination against transgender people. The first provision recognizes that Title IX’s ban on sex discrimination includes discrimination based on gender identity. A second provision at issue in the case makes clear that schools violate Title IX when they bar transgender people from using bathrooms and locker rooms consistent with their gender identity. And a third provision defines “hostile-environment harassment” to include harassment based on gender identity, which the states say could require students and teachers to refer to transgender students by the pronouns that correspond to their gender identity.

In June, federal trial courts blocked the Department of Education from enforcing any part of the 2024 rule in the 10 states bringing the 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, which was originally slated to go into effect on August 1, 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 10 states 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.”

The states urged the justices to stay out of the dispute and to allow the lower courts’ rulings to stand. Louisiana and the other challengers in that case pushed back against the Biden administration’s suggestion that the lower court’s order sweeps too broadly because it puts the whole rule on hold. The challengers insisted that they had in fact “repeatedly leveled attacks at the entire Rule,” because “it is virtually impossible to eliminate key provisions” from that rule. Tennessee and the challengers in the other case contended that the Biden administration had not in any event argued in the lower courts that the two provisions focused on discrimination against transgender students could be separated from the rest of the rule. The lower courts properly blocked the entire rule, the challengers maintained, rather than “requiring thousands of schools to spend immense sums complying with hundreds of pages of rules in just three months.”

In a three-page unsigned opinion issued on Friday afternoon, the court turned down the Biden administration’s request to be allowed to implement most of the rule. The justices first explained that they all agreed that the three provisions should remain on hold for now, “including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.”

Turning to the rest of the rule, the justices noted that the government can only prevail if it can show that it is likely to succeed on its argument that the three provisions can be separated from the rest of the rule and that fairness warrants a stay. But thus far, with a “limited record” and “in its emergency applications,” the justices concluded, the government has not given the court “a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions likely to be unlawful are intertwined with and affect other provisions of the rule.”

The government, the justices continued, has also not “adequately identified which particular provisions, if any, are sufficiently independent of the” provision defining “sex discrimination” to include gender identity and therefore “might be able to remain in effect.”

Finally, the justices observed, one court of appeals has already fast-tracked the government’s appeal, with oral arguments in the dispute scheduled for October.

In her nine-page dissent, Sotomayor acknowledged that “this litigation is still unfolding” and that the challengers “might eventually show injuries from the other portions of the rule.” But in her view, the challengers had not explained why the entire rule should be put on hold to address the injuries that they allege. Therefore, they would put the lower courts’ orders on hold for now except with regard to the three provisions at the center of the dispute.

Challenges to the April 2024 rule are also pending elsewhere, including in Texas, Kansas, Alabama, Oklahoma, and Missouri.

This article was originally published at Howe on the Court.