Yet another court has enjoined the Department of Education from enforcing its new Title IX rules that interpret Title IX's ban on sex discrimination as including a ban on gender identity discrimination. In State of Arkansas v. U.S. Department of Education, (ED MO, July 24, 2024), a Missouri federal district court issued a preliminary injunction barring enforcement against Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota and the individual plaintiff, a student in a school in Arkansas who says the rule violates her religious beliefs. the court said in part:
After preliminary review and without ultimately deciding the issue, the Court is persuaded that plaintiffs have a fair chance of prevailing on their argument that the reasoning of Bostock, a Title VII employment discrimination case, should not apply to Title IX. ...
Given that notice is the touchstone of Title IX, the statute contains no definition of sex or express prohibition of discrimination on the basis of gender identity, and it expressly permits sex-based differential treatment in certain circumstances, plaintiff States have met their preliminary burden of establishing a fair chance of prevailing on their argument that they lacked constitutionally sufficient notice that sex discrimination would be interpreted as including gender identity discrimination when they accepted federal funding under Title IX.
The court also preliminarily enjoined the new rules' expansion of the definition of harassment, concluding that the definition may violate the 1st Amendment by chilling speech. ADF issued a press release announcing the decision.
