The Biden administration spent nearly two years crafting new regulations that attempted to make clear Title IX’s ban against discrimination “on the basis of sex” also included discrimination-based sex stereotypes, pregnancy, sexual orientation, and gender identity. Notwithstanding the U.S. Supreme Court’s conclusion in the Bostock case that the term “sex” included these other matters in the context of Title VII, the U.S. District Court for the Eastern District of Kentucky issued an order on January 9, 2025, vacating the U.S. Department of Education’s April 2024 Title IX Final Rule (“Final Rule”), in the case of State of Tennessee, et al. v. Cardona. 

As explained in more detail below, the Court vacated the Final Rule after concluding that it exceeds the Department of Education’s authority from Congress under Title IX, is arbitrary and capricious, and violates the U.S. Constitution. This means that the Trump-era 2020 Final Rule is now back in effect.

Title IX is best known as the law enacted to remediate sex discrimination in student athletics, but its coverage is more far-reaching, protecting against discrimination based on sex in all education programs or activities that receive federal financial assistance. The law is straightforward in its prohibition, stating in relevant part:

[N]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination [in] any academic, extracurricular,.. or other education program or activity[.]

A lingering disagreement about Title IX, especially during the last three administrations, has been what Congress meant by discrimination “on the basis of sex” as used in Title IX, when it passed the law back in 1972. With the 2024 Final Rule, the Department of Education adopted an expansive definition, describing “discrimination on the basis of sex” to mean any discrimination that depends in part on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” The Court did not buy it, however, and concluded that the Department of Education had exceeded its lawful authority in implementing the 2024 Final Rule. The Court found the plain language used by Congress in passing Title IX to be abundantly clear: Discrimination on the basis of sex means only “discrimination on the basis of being a male or female” and nothing more than that.

In support of the 2024 Final Rule’s definition, the Department of Education relied primarily on the Supreme Court’s decision in Bostock v. Clayton County, Ga., a case in which the U.S. Supreme Court concluded in an employment discrimination context that discrimination “because of sex” extends to “transgender status,” with Justice Gorsuch reasoning that “transgender status [is] inextricably bound up with sex[.]”  However, the Court rejected the Department of Education’s reliance on Bostock, noting that Congress used materially different language in the two statutes  – discrimination “because of sex” in Title VII and discrimination “on the basis of sex” in Title IX. 

Instead, relying on the Supreme Court’s 2024 decision in Loper Bright Enters. v. Raimondo, the Court would not accept the Department of Education’s rationale for its expansive definition of  “on the basis of sex” as used in the 2024 Final Rule, stating that it is tasked with exercising independent judgment in “identifying Title IX’s single best meaning, rather than merely a plausible or permissible one. When viewed as a whole, the Court concluded that the single best definition of “on the basis of sex” as used in Title IX is “discrimination on the basis of being male or female.”  Because the 2024 Final Rule’s definition is overinclusive, the Court set aside the 2024 Final Rule.

On essentially the same factual grounds, the Court further concluded that the 2024 Final Rule is arbitrary and capricious. In the Court’s view, the Department of Education “did not provide a reasoned explanation for departing from the longstanding interpretation of Title IX, and failed to account for “glaring inconsistencies” that the 2024 Final Rule creates within Title IX, namely that Congress itself had viewed some separations of the sexes to be permissible under Title IX in certain circumstances, e.g., social fraternities and sororities and student living facilities, while the 2024 Final Rule deems any separation of the sexes to be discrimination on the basis of sex.

Finally, the Court ruled that the 2024 Final Rule violates U.S. Constitution in two different ways. First, it abridges the First Amendment’s free speech protections because the new harassment standard it creates is too vague and ambiguous to allow educators (and others) to reasonably know whether or to what extent their speech concerning gender issues, e.g., failure to use gender-identity-based pronouns would constitute unlawful harassment on the basis of sex, in violation of Title IX.

Second, the 2024 Final Rule violates the U.S. Constitution’s Spending Clause, which allows Congress to attach certain conditions on the receipt of federal funds, such as those provided to educational institutions under Title IX, but only if Congress does so with “clear notice” to recipients of the obligations attached to the receipt of federal funds. Here, because the Department of Education expanded Title IX to encompass entirely new obligations on recipients that were not clear and were not contemplated in the text of the original statute, the 2024 Final Rule is impermissibly vague and in violation of the Spending Clause.

The Court’s ruling is applicable nationwide, meaning that the 2024 Title IX final rule is no longer in effect. Instead, recipients of federal funding must revert to the Trump administration’s 2020 Title IX Final Rule and previous Title IX regulations. It is anticipated that the Department of Education will issue guidance on the changes effectuated by the Court’s ruling. When that will happen is unclear.

What the Department of Education will do next is uncertain. It has the option of appealing the Court’s ruling or filing a petition for emergency relief with the U.S. Court of Appeals for the Sixth Circuit. However, a decision in either forum is unlikely in the short time remaining for the Biden administration. The incoming administration is highly unlikely to pursue any appeal of the Court’s decision. President-elect Trump has made it clear that he would do all he could to roll back the 2024 Final Rule, once in office.

This blog will be updated with the details of any further changes to the Title IX regulations or additional Department of Education guidance. In the interim, if you need assistance with any higher education-related issues or questions for your institution, please contact Timothy Hughes, thughes@beankinney.com, or Doug Taylor, rdougtaylor@beankinney.com, or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.