Supreme Court blocks temporary enforcement for expanded protections of transgender students
EMERGENCY DOCKET
The Supreme Court on Friday rejected the Biden administration’s request to temporarily enforce most of an April 2024 rule implementing Title IX of the Education Amendments of 1972, which prohibits a racial discrimination in education programs that receive federal funding. (Katie Barlow)
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, along with Justices Elena Kagan and Neil Gorsuch, dissented. 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 primarily on three provisions in the April 2024 rule which target discrimination against people who identify as transgender. The first provision acknowledges that Title IX prohibits discrimination based upon gender identity. In the case, a second provision makes it clear that schools are violating Title IX if they prevent transgender students from using bathrooms or locker rooms in accordance with their gender identities. In June, federal trial court judges blocked the Department of Education’s enforcement of any part of the rule 2024 in the 10 states that brought the challenge. Federal appeals courts, in New Orleans and Cincinnati, denied the federal government’s request that it temporarily enforce the entire rule, originally scheduled to take effect on August 1. The exception was the two provisions aimed at discrimination against transgender individuals, which the government claimed is the cause of the injuries alleged by the 10 states. In a pair of filings, U.S. Solicitor Elizabeth Prelogar asked the justices to step in. She stressed that the 2024 regulation is an “omnibus,” regulation that addresses many issues, not related to discrimination against the transgender community, and that the states haven’t challenged. She added that when the Department of Education issued the rule, it intended for each provision to stand on its own. She argued that the district courts’ orders blocking enforcement of the entire regulation were too broad and blocked “dozens” of provisions not before the court. 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 other challengers to that case resisted the Biden administration’s suggestion that lower court’s order sweeps too widely because it puts entire rule on hold. The challengers claimed that they had “repeatedly attacked the entire Rule” because “it is nearly impossible to eliminate key provision(s) from that rule. Tennessee and the challengers of the other case argued that the Biden Administration had never argued to the lower courts that two provisions focusing on discrimination against the transgender student could be separated from rest of the rule. The court rejected the Biden administration’s request for permission to implement the majority of the rule in a three-page, unsigned opinion released on Friday afternoon. 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.
