Page 20 - BusinessWest October 28, 2024

Emerging Challenges
Where Are New Title IX Regulations Not Enforceable?
BY KATHLEEN E. DION AND SABRINA GALLI
By Aug. 1, 2024, universities across the country were required to implement the Biden administration’s new regulations con- cerning Title IX of the Education Amendments of 1972, which
contained numerous expansions on the law’s protections.
For example, the regulations, released in April 2024, redefined
sex discrimination to include “all forms of sex-based discrimination,” as opposed to only sexual harassment, and include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
“As anticipated, litigation has emerged, challenging multiple por- tions of the new regulations and resulting in district courts issuing preliminary injunctions throughout the country barring enforcement of the 2024 regulations.”
While these regulations are intended to expand protections for
all under the Title IX umbrella, not all are happy with the expan-
sions. As anticipated, litigation has emerged, challenging multiple
portions of the new regulations and resulting in district courts issu-
ing preliminary injunctions throughout the country barring enforce-
ment of the 2024 regulations. Challengers to the new regulations
oppose the expansion of the sex-discrimination definition to include discrimination based on gender identity, the ‘de minimis harm’ standard, and the definition of hos- tile-environment harassment as it applies to gender-identity discrimination.
As a result of these lawsuits, the 2024 regulations have not been enforced in nearly 26 states, encompassing a large portion of the South and Midwest, includ- ing but not limited to Alabama, Arkansas, Florida, Georgia, Kansas, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, and Texas. Not only were these injunctions issued on a state-by-state basis, but one injunction out of Kansas barred enforcement of the 2024 regulations on any campus that had a chapter of one of three conservative organizations: Young America’s Foundation, Female Athletes United, or Moms for Liberty.
The U.S. Department of Education (DOE) responded by asking the U.S. Supreme Court to partially stay the injunctions, allowing the non-challenged parts
SABRINA GALLI
KATHLEEN DION
of the new regulations to go into effect. On Aug. 16, the U.S. Supreme Court, in Department of Education v. Louisiana, denied that request, citing the lower court’s findings that the provisions in dispute were too intertwined with other provisions of the rule to allow severability.
A dissent written by Justice Sotomayor and joined by Justices Kagan, Gorsuch, and Jackson disagreed, finding that the injunctions barring enforcement of the entire rule are too broad.
While the states enjoining enforcement of the 2024 regulations have fluctuated over the last few months, the U.S. Department of Education’s website provides a full list of enjoined states: Alabama,
Alaska, Arkansas, Florida, Georgia,
Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Mon- tana, Nebraska, North Dakota, Ohio,
Title IX
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