In State of Tennessee v. Cardona, (ED KY, Jan. 9, 2025), a Kentucky federal district court issued a vacatur order invalidating rules under Title IX adopted by the Department of Education last April. Plaintiffs challenged provisions that extended sex discrimination bans to discrimination on the basis of gender identity. The court said in part:
Because the Final Rule and its corresponding regulations exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action, the plaintiffs’ motions for summary judgment will be granted....
... [T]he Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the de minimis harm standard, require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity....
The plaintiffs reasonably fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment under the Final Rule. Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner....
The Final Rule also is vague and overbroad. ....
... [A] vacatur order “takes the unlawful agency action ‘off the books’”—“an entirely appropriate response when a plaintiff successfully establishes that the agency’s conduct violates the law.”... Vacatur operates on the rule itself and prevents the rule’s “application to all who would otherwise be subject to its operation.” ... See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay
Although the Court has discretion to craft a different remedy, there is no reason to do so here.
ADF issued a press release announcing the decision.
