Four states suing the Biden administration over its Title IX rule protecting LGBTQ+ students have proven "a substantial likelihood that they will prevail on the merits" of their case and "a substantial risk of irreparable injury" if the rule goes into effect, according to an injunction pending appeal issued by the U.S. 11th Circuit Court of Appeals on Friday.
Most lawsuits against the Biden administration’s Title IX rule had so far resulted in "preliminary" or "administrative injunctions," temporarily pausing the rule until the courts could make headway on the case. The "injunction pending appeal" issued by the 11th Circuit last week takes this one step further and requires the plaintiffs to meet a higher burden of proof than prior injunction orders.
The appellate courts have dealt multiple blows to the Biden administration's Title IX rule since it was released in April.
The decision from the 11th Circuit follows its July 31 order granting a motion for an administrative injunction, which paused the rule "pending further order of this Court" until it could provide a "fulsome review of the merits" of the case. The new rule-wide injunction pending appeal means states have made a strong case for their claims.
The states — Alabama, Florida, Georgia, South Carolina, and four private organizations — claimed the new rule violates Title IX itself, the department overstepped its authority in issuing the rule, and that the rule is "arbitrary and capricious." The rule's broader definition of sex-based harassment also "lowers school's protections from liability," the lawsuit, filed in April, said.
A handful of other lawsuits make similar or identical claims to those of Alabama, Florida, Georgia, South Carolina. So far, the rule has been temporarily paused in at least 26 states until the courts can ultimately decide on those claims.
The U.S. Department of Education was also recently dealt a blow from the U.S. Supreme Court, which denied the agency’s request to be able to enforce the uncontested parts of the rule. However, the department said it will "continue to defend" the rule.
The Education Department has acknowledged that the "fluid legal environment" has caused "some confusion." Indeed, district leaders have expressed concern over whether and how to enforce the 2024 rule.
However, on Aug. 1 — the day the rule went into effect — the department clarified it will continue to enforce the 2020 rule issued under the Trump administration in the majority of the states where the rule is temporarily blocked.
“We are reviewing the ruling," a department spokesperson said of the most recent 11th Circuit order in an email to K-12 Dive on Friday, adding that its rule underwent a "rigorous process" before being issued. "The Department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.”
