Title IX Gender Identity Protections Blocked by Eleventh Circuit

The Eleventh Circuit blocked the Education Department from prohibiting discrimination on the basis of gender identity in schools that get federal funding, reversing an Alabama judge’s decision to allow the Title IX rule to take effect.

The Biden administration adopted the rule in April to include sexual orientation and gender identity in the list of characteristics protected under Title IX sex discrimination regulations. Since then, more than half of US states across ten lawsuits have sued to stop the rules from being enforced.

Alabama, Georgia, Florida, and South Carolina asked the US Court of Appeals for the Eleventh Circuit to follow suit after they failed to initially secure an injunction from a lower court in Alabama. The Eleventh Circuit granted their request, enjoining enforcement of the civil rights regulation pending the states’ appeal.

“Before this action, every court to consider the issue across the nation—seven district courts and two courts of appeals—preliminarily enjoined enforcement of the rule,” the Eleventh Circuit said in the per curiam opinion joined by Judges Elizabeth L. Branch and Robert J. Luck. “The district court here, by contrast, refused to enjoin the rule a day before it was supposed to go into effect.”

The appeals court order described the rule as representing a “sea change” to the regulations used by the Education Department to administer Title IX, describing the Biden administration’s interpretation as “materially altering and expanding the scope of Title IX’s sexual-harassment-related regulations.”

The Education Department’s regulation is highly likely to be contrary to or in excess of its Title IX authority, based on the US Supreme Court’s construction of “discrimination” set out in Davis v. Monroe County Board of Education, the majority’s order said.

The high court established in Davis that student-on-student sexual harassment was discrimination for the purposes of Title IX, and that in order for a private plaintiff to bring a damages suit, the behavior must be “so severe, pervasive, and objective offensive that it denies the victims the equal access to education that Title IX is designed to protect.”

The Biden administration’s regulation likely strays too far from that definition, capturing behavior that is “so severe or pervasive that it limits or denies” education access, the Eleventh Circuit order said. “It is not clear why a different, and significantly broader, definition of ‘discrimination’ would apply in the administrative context,” the order said.

Judge Charles R. Wilson dissented, agreeing with the lower court that the states’ allegations of harm from the antidiscrimination rules were “conclusory” and didn’t meet the standard for an injunction.

The states were represented by their various attorneys general.

The case is Alabama v. U.S. Sec’y of Educ., 11th Cir., No. 24-12444, 8/22/24.