On January 9, 2025, the Biden administration’s Title IX Final Rule was struck down by the U.S. District Court for the Eastern District of Kentucky, which declared the regulations unconstitutional for all schools nationwide.

The case is State of Tennessee v. Cardona.

Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities receiving federal funds must comply with Title IX. The Final Rule had made significant changes to Title IX regulations affecting educational institutions, including clarification of defined terms, an expanded geographical scope, changes to the investigative process, and the inclusion of sexual orientation, gender identity and pregnancy/lactation protections under Title IX.

Since the Final Rule was released in April 2024, there had already been numerous successful legal challenges to the rule, resulting in the blocking of its application in 26 states and numerous institutions outside of those states. Now, subject to an unlikely appeal, the Final Rule has been blocked nationwide, relieving all educational institutions across the country from its requirements.

The Court’s Decision

The court outlined its order in three main sections. The first focused on how the Department of Education exceeded its statutory authority when, in drafting the Final Rule, it revised the definition of “on the basis of sex” to include, among other things, gender identity. The court explained that, expanding the meaning of “on the basis of sex” to include “gender identity” “turns Title IX on its head.” In its analysis, the court differentiated Bostock v. Clayton County, 590 U.S. 644 (2020), reasoning that the Bostock holding was expressly limited to Title VII. The court further reasoned that in viewing Title IX in its entirety, “it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female.” The court relied on the decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 349, 412-13 (2024) in ruling that the Department of Education did not act within its statutory authority when it expanded the definition of “on the basis of sex.”

Next, the court discussed its determination that the Final Rule was unconstitutional. The court first explained that the Final Rule violated the First Amendment, because it required Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity. The court further expressed that 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 court also determined that the Final Rule was unconstitutional because it was vague and overbroad. Looking to what constituted a private cause of action under Title IX in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) (“harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”), the court determined that the language in the Final Rule (prohibiting unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity) went far beyond the Davis standard and that several of the terms were “so vague that recipients of Title IX funds have no way of predicting what conduct will violate the law.” Lastly, the court determined that the Final Rule was unconstitutional because it violated the Spending Clause of the United States Constitution. Under Supreme Court precedent, legislation, such as Title IX, that provides conditions for the receipt of federal funds, (1) must be in pursuit of the general welfare; (2) impose unambiguous conditions; (3) the conditions must relate to federal interests in the program; and (4) the conditions must not induce unconstitutional action. S. Dakota v. Dole, 483 U.S. 203, 206-07 (1987). Based on the reasoning above, the court determined that the Final Rule failed the fourth prong of the Spending Clause analysis.

Finally, the court determined that the Final Rule was arbitrary and capricious because the Department of Education did not provide a “reasoned explanation for departing from its longstanding interpretation of Title IX” and inappropriately relied on Bostock given the “striking differences between Title VII and Title IX.” The court also noted that the Department of Education failed to account for the “glaring inconsistencies that the Final Rule creates within Title IX.” The court provided the example that the Department of Education acknowledged that certain sex separation is permissible, such as social fraternities and sororities and living facilities, but impermissible for other living facilities, such as bathrooms, toilets, or showers.

Based on its findings, the court vacated the Final Rule, which has the practical effect of erasing the April 2024 rule and reinstating the 2020 regulatory standards in effect before the Biden administration’s Title IX rule.

What’s Next?

The Biden administration’s Department of Education could appeal the decision before President-Elect Trump takes office on January 20, 2025. But given President-Elect Trump’s campaign promise to roll back the Final Rule, it seems highly unlikely an appeal will be pursued following his inauguration.

The court’s decision to strike down the April 2024 Final Rule has no further impact on:

• Those institutions operating in the states where the Final Rule had already been enjoined: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Louisiana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming;
• Institutions in states other than those listed above with enrolled students who are members of either Young Americas Foundation or Female Athletes United, which had already been subject to injunction against the rule since July 2024 from the federal case of State of Kansas v. United States Department of Education; and
• Institutions with enrolled minors whose mothers are members of Moms for Liberty, which have also been previously enjoined from implementing the April 2024 Final Rule.

For all other institutions that updated their policies and procedures in line with the 2024 regulations, which had gone into effect on August 1, 2024, the next steps are not as clear. 

Institutions may revert back to the policies and procedures they had in place under the 2020 Title IX regulations for all new Title IX matters moving forward. This would be in keeping with previous advice from the Department of Education’s Office of Civil Rights that, wherever the 2024 regulations were enjoined, the 2020 regulations should be followed.

But for pending Title IX cases commenced under the 2024 Title IX regulations before last week’s court ruling in which a final determination has not been made, an institution may choose to proceed differently depending on the current posture of each case (e.g., cases that are currently being investigated; cases that are post-investigation but pre-decision; and cases that are post-decision but within the appeal period). For institutions that adopted a single investigator/decision-maker model after the 2024 regulations went into effect, in cases that have not yet reached final decision, respondents could ask to have an independent decision-maker appointed to conduct a live hearing.

The bottom line is that institutions will need to determine where in the investigative process they should draw the line for cases to proceed to a final determination/appeal under the 2024 regulations or be paused to conform back to the 2020 regulations. 

This will not be an easy decision. Pending cases will need to be assessed on a case-by-case basis, since changing policies and procedures mid-investigation could cause delays in the process and strain the institution’s Title IX resources, not to mention the potential prejudice to parties to the case that could arguably result from any delay. 

Institutions should consider working with Title IX legal counsel to assess pending Title IX cases and make legally defensible decisions about what changes to their current policies and procedures may be appropriate and how they will be applied to pending and future cases.