Yesterday, in a sweeping order that purports to reach far beyond the five states that filed the underlying lawsuit (Tennessee vs. Cardona), a federal district court in Kentucky struck down the 2024 Amendments to Title IX. It was widely anticipated that the court, which had previously enjoined the application of the 2024 Amendments in the plaintiff states (Kentucky, Tennessee, Indiana, Virginia, and West Virginia), was likely to permanently enjoin the amendments in those states. Instead, US District Judge Danny C. Reeves went a step beyond, invoking the legal remedy of “vacatur” to summarily invalidate the 2024 Regulations and prevent their application “to all who would otherwise be subject to” those regulations. (emphasis added)
So, what does the order of a federal district judge in the 6th Circuit on claims pressed by the attorneys general of Kentucky, Tennessee, Indiana, Virginia, and West Virginia mean for schools in your state? More than many in the legal community likely anticipated, it would appear. On its face Judge Reeves’s order invalidates the 2024 amendments entirely, such that as of today, those amendments are no longer in effect nationwide, in any state, and the 2020 regulations are back in force across the country.
In his 15-page order, Judge Reeves concluded that the 2024 Regulations “exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action.” His analysis primarily addressed the 2024 amendments’ expansion of prohibited sex-based discrimination to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity” and their prohibition on schools adopting policies or engaging in practices that prevent a person from participating in an education program or activity consistent with the person’s gender identity. On those key issues, Judge Reeves opines, “Put simply, there is nothing in the text or statutory design of Title IX to suggest that discrimination ‘on the basis of sex’ means anything other than it has since Title IX’s inception—that recipients of federal funds under Title IX may not treat a person worse than another similarly-situated individual on the basis of the person’s sex, i.e., male or female…” Reeves goes on to add that “expanding the meaning of ‘on the basis of sex’ to include ‘gender identity’ turns Title IX on its head.”
Getting back to what this means for your school today and going forward, although the Secretary of Education could certainly appeal this decision, the Trump administration could and likely would withdraw any appeal that may be initiated during President Biden’s last days in office. This is a bit of a fluid situation in the short term, but the writing is very clearly on the wall for the long term. As Attorney Brett A. Sokolow of the Association of Title IX Administrators (ATIXA) observed, “For now, at least, it is logical for ATIXA to interpret the court’s ruling to have considered vacatur to be a universal order applying to all states, though there are many unsettled legal questions surrounding this.”
We will be reaching out to our school clients in the coming days to discuss the implications of Tennessee vs. Cardona, and as always, please do not hesitate to contact us with any questions.
