On June 17, Chief Judge Danny Reeves of the Eastern District of Kentucky issued a preliminary injunction staying the effective date, and enjoining enforcement, of the new Title IX regulations in the states of Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia. As with the order issued on June 13 by the District Court for the Western District of Louisiana, the court limited this injunction to the plaintiff states. The Title IX regulations are now enjoined in a total of 10 states.
Chief Judge Reeves opened his opinion with a pointed declaration: “There are two sexes: male and female.” Although the plaintiffs complained primarily about the new regulations’ definition of “sex-based discrimination” to include discrimination based on gender identity, the order delays implementation and enforcement of the new Title IX regulations in their entirety. The regulations were set to go into effect on August 1.
This order was the second of this type in the past week and—unlike the injunction issued by the district court in Louisiana—comes following a June 10 hearing on the motion. Similar to the case in Louisiana, Chief Judge Reeves accepted many of the arguments made by the plaintiff states relating to the lack of authority, arbitrary and capricious rulemaking, and First Amendment constitutionality concerns with the new regulations. The judge also expressly rejected the application of the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), a case which defined sex-based discrimination in Title VII to include discrimination on the basis of sexual orientation, to the Title IX context.
Chief Judge Reeves’ decision contains reasoning that is more robust than the opinion from the Western District of Louisiana, including a more extensive discussion on the reasons for enjoining the new regulations in their entirety, despite finding infirmity only with a few portions of the regulations. We expect that both of these decisions will be appealed, although no appeal has yet been filed. Any appeal of Chief Judge Reeves’ decision would be heard by the U.S. Court of Appeals for the Sixth Circuit.
Five cases on this issue remain pending in federal courts, with states as plaintiffs. We will continue to monitor all of these cases. Please do not hesitate to contact the author if you have any questions about this fast-moving area.
This alert was prepared with substantial assistance from Bass, Berry & Sims summer associates Laura Collins and Ben Peterson.