A federal judge on Monday blocked the U.S. Department of Education's Title IX final rule in six conservative states — Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia. The blow comes less than a week after a similar decision blocked the regulation, which interprets the anti-sex discrimination law to include protections for LGBTQ+ students, in Louisiana and three other states before the rule's Aug. 1 implementation date.
The recent decisions are in response to a string of lawsuits filed against the rule by attorneys general in at least 15 conservative states shortly after its release in April. They stop the rule from taking effect while these cases proceed and also signal that the judges believe the states are likely to succeed in overturning the rule.
The lawsuits contend the department exceeded its authority on redefining sex-based protections to include LGBTQ+ students, among other allegations.
Monday's decision also says the six states are likely to succeed in arguing that the department violates First Amendment free speech rights by requiring the use of preferred pronouns.
"It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto," wrote Chief Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky. "So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX."
He continued that the final rule "forces the Nation’s schools and educators to convey a message ordained in Washington, D.C., while silencing dissenting opinions and undermining state law and the discretion of local school boards."
The court's preliminary injunction and the resistance from conservative states — while expected — spell trouble for the Biden administration as it tries to protect LGBTQ+ rights under Title IX. Its rule would have likely addressed policies and civil rights concerns such as book bans, shared bathrooms and locker rooms, and other contentious issues in schools related to gender and sexuality.
The injunctions were also preceded by a decision last week out of Texas that blocked the department's interpretation and guidance documents on Title IX that the administration issued before its final rule.
Last week, the department stood by its rule in response to the Louisiana decision, saying it intends to "fight for every student," and that it followed "a rigorous process to realize the Title IX statutory guarantee" in finalizing the rule.
