The U.S. Supreme Court on Friday denied the Biden administration's request to allow enforcement of uncontested parts of the Title IX final rule in some states where injunctions are in place.
The administration asked the high court last month to weigh in on whether the U.S. Department of Education could move forward with enforcing the undisputed portions, after judges in both the 5th and 6th U.S. Circuit Courts of Appeals denied the administration's request earlier in July.
Federal courts have temporarily blocked the Education Department from enforcing the rule in at least 26 states, due to its controversial LGBTQI+ protections. The Justice Department's request to allow portions of the rule to be enforced covered at least 10 Republican-leaning states that challenged those protections shortly after the rule was released to much controversy in April.
The Supreme Court's rejection of the emergency request means the entire rule will be on pause in those 10 states with a temporary injunction while lawsuits challenging the regulations work their way through the courts.
In a pair of July 22 filings challenging Title IX lawsuits, U.S. Solicitor General Elizabeth Prelogar called lower court decisions blocking the entire rule's enforcement — rather than just the parts protecting LGBTQI+ students — "a blunderbuss approach to preliminary relief” that is “both wrong and consequential.”
Eventually, Prelogar said, she expects the rule itself "may well require" the Supreme Court's input.
A July 26 response from Tennessee rebutted Prelogar's point. "Even if the only illegal part of the rule were [sex discrimination's] inclusion of gender identity, that defect alone justifies the district court’s injunction," it said.
The justices, in an unsigned opinion, said the states were "entitled" to a temporary pause of the rule's provisions, "including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity."
The rejection was opposed in part by four justices, who said they would keep other parts of the rule in place aside from the portions related to LGBTQI+ protections.
"The amended provisions of the Rule cover a range of matters, most of which do not reference gender identity discrimination and went unmentioned by respondents," said Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Ketanji Brown Jackson.
The decision comes two weeks after the rule's Aug. 1 implementation date that left Title IX coordinators scrambling in enjoined states without official guidance or resources from the department until the last minute.
The Education Department, in an email, said it disagreed with the ruling and stands by its final Title IX rule. The department plans to "continue to defend those rules" in litigation pending in lower courts, an agency spokesperson said.
The 6th Circuit — which covers Kentucky, Michigan, Ohio and Tennessee — expedited its hearing of the Title IX case to October while the temporary injunction against the rule stays in effect.
“I am grateful that the Supreme Court of the United States agreed that no part of the Biden administration’s Title IX rule should go into effect while the case proceeds,” said Tennessee Attorney General Jonathan Skrmetti in a statement on Friday. “This is a win for student privacy, free speech, and the rule of law.”
Louisiana Attorney General Liz Murrill echoed the sentiment, adding, "This fight isn’t over.”
