The fate of federal regulations that would significantly expand the rights of LGBTQ+ students under Title IX is in legal limbo after court rulings placed the U.S. Department of Education’s Aug. 1 implementation of the new policies on pause in thousands of schools across the country, including Connecticut.
Litigation brought by parents’ rights groups and state attorneys general who oppose the new protections for LGBTQ+ students has successfully blocked the 2024 Title IX Final Rule , crafted by President Joe Biden’s administration, through preliminary injunctions as the challenges play out in court.
Among other changes, the Final Rule expands the Title IX definition of sexual harassment and prohibits discrimination on the basis of sexual orientation, gender identity, sex stereotypes, sex characteristics, and pregnancy or related conditions. The Final Rule also clarifies that schools and colleges must address conduct even in incidents that occur outside of an education program or beyond U.S. borders.
Here is what you need to know about the battle in Connecticut, where more than two dozen public and private K-12 schools and colleges have fallen under a Kansas judge’s injunctive order.
What is happening in the courts?
Earlier this month, U.S. District Judge John Broomes of the District of Kansas ordered a sweeping preliminary injunction that prohibits federal enforcement of the 2024 Title IX Final Rule in Alaska, Kansas, Utah, Wyoming and a patchwork of public and private schools across the country.
The July 2 order specifically bars the U.S. Department of Education, its Secretary Miguel Cardona, the U.S. Department of Justice, U.S. Attorney General Merrick Garland and their agents “from implementing, enacting, enforcing, or taking any action to enforce” the final rule in the four states and any school attended by members of Young America’s Foundation, Female Athletes United and the children of Moms for Liberty members.
In a subsequent order on July 19 , Broomes extended the injunction, which will remain in place through a trial, to include prospective members of the three groups. The expansion allows the injunction to cover new schools as new members join.
Does the injunction apply to Connecticut?
Twenty-five public and private K-12 schools and two universities already fall under Broomes’ order. The injunction could extend to dozens more districts in the days and weeks to come, as more Moms for Liberty members opt into the injunction.
In a July 15 court filing , plaintiffs identified Middlesex Middle School in Darien, Connecticut River Academy in East Hartford, Enfield High School, Greenwich Country Day School, Hamden Hall Country Day School, North Branford High School, Stamford High School, King School in Stamford and Mesivta High School in Waterbury as declarants on a list of more than 400 K-12 schools attended by members of Young America’s Foundation that are bound by the injunction. Yale University and Fairfield University were also included among more than 700 college declarants.
In a filing Friday evening , Moms for Liberty added sixteen more schools to the list: in Berlin, Emma Hart Willard School; in East Lyme, Lillie B. Haynes School, East Lyme High School and East Lyme Middle School; in Newtown, Middle Gate Elementary School, Reed Intermediate School, Sandy Hook Elementary School, Newtown High School, Newtown Middle School; in Regional District 14, Bethlehem Elementary School, Mitchell Elementary School, Nonnewaug High School, Woodbury Middle School; in Torrington, Torrington High School; and in Wilton, Cider Mill School and Miller Driscoll School.
The list of K-12 schools covered under the injunction is expected to grow in Hartford, Fairfield and Litchfield counties where local Moms for Liberty operates. Private Facebook groups for the Hartford County and Fairfield County chapters show a combined membership of 778 people.
Manju Gerber, the Hartford County chair, said that local chapters do not maintain records of schools attended by their members’ children. Gerber said Moms for Liberty National has coordinated efforts to opt-in new members and document schools covered by the injunction.
How would this impact schools in the state?
It is not entirely clear how the injunction will play out in impacted Connecticut schools.
The July 2 order suggests that schools could adopt policies that fall in line with the 2024 Title IX Final Rule.
In the order, Broomes writes that the injunction “simply prohibits Defendants from demanding compliance with the Final Rule by the schools affected by this order, or imposing any consequences for such schools’ failure to comply with the Final Rule,” and that the court’s order places no limit on “the ability of any school to adopt or follow its own policies, or otherwise comply with applicable state or local laws or rules.”
Melinda Kaufmann , a school law attorney for the firm Pullman & Comley who hosts the monthly webinar series Title IX on the Nines , said that while the injunctions in place across the country specifically discuss restraining the Department of Education’s enforcement, many of the rulings “go on to say that the actual final rule is enjoined and restrained from going into effect on Aug. 1.”
Kauffmann said that this leaves a question mark around how schools should proceed under a potential injunction.
“Districts that are on this list (of enjoined schools) are going to have to talk to their own counsel and decide how they want to move forward,” Kauffmann said.
Kauffmann said the injunctions have launched schools into “an unprecedented period of turmoil” as some schools move to implement the new federal policies and others follow the injunction. Kauffmann warned that schools should prepare for more rulings that could institute new or overturn existing injunctions.
While the expanded Title IX definition and its expanded protections may be a change for other states, Kauffmann explained that Connecticut’s definition of sexual harassment has been much broader than previous Title IX rules. Kauffmann said the 2024 Final Rule brings the federal language more in line with the state.
“Connecticut has pretty strong protections for the LGBTQ students already,” Kauffmann said. “I’m not sure that (the rulings are) going to change much in the short term, other than that if a school is enjoined from these specific Title IX regulations, they may be processing those discrimination complaints under a state policy instead of a federal policy.”
How are districts responding?
Several representatives of Connecticut public and private schools and universities listed in the July 15 court filing either did not reply or declined to comment on their plans under the injunction.
In a statement to the Courant, Yale said the university “is committed to its ongoing efforts to prevent and respond to all forms of sex-based discrimination and harassment, including sexual misconduct.”
“We are closely assessing the situation given the complexity of the legal ruling and will continue to comply with Title IX requirements,” Yale said.
Adam Rohdie, the head of school at Greenwich Country Day School, said he was unaware that families at the school were members of Young America’s Foundation, Female Athletes United or Moms for Liberty.
“As an independent, non-profit school, not supported by federal funding, GCDS does not have a position on this rule,” Rohdie said in a statement to the Courant. “The school is not aware of any of its families participating in these organizations and was not consulted prior to having its name submitted to the court in this matter.”
In a statement to the Courant, Patrice McCarthy the executive director and general counsel of the Connecticut Association of Boards of Education described the legal battles as “a rapidly evolving issue” in the state.
“We have not yet provided any specific guidance with respect to the litigation,” McCarthy said. “CABE does provide a model Title IX policy to districts, but advises them to consult with their board attorney when questions arise around implementation.”
How is the state responding?
In a statement to the Courant Friday the Connecticut State Department of Education said it is aware that the court decision has stayed the U.S. Department of Education’s implementation and enforcement of the Final Rule on Aug. 1.
“As noted in the injunction, compliance with state or local laws is not impacted,” the department said. “Connecticut’s anti-discrimination laws include Section 10-15c, which requires all public-school students be provided with equitable opportunities, regardless of gender identity or expression.”
On July 15, House Republican Leaders Vincent Candelora, and state Reps. Jason Perillo, Dave Rutigliano, Lezlye Zupkus, Tom O’Dea, Tim Akert and Tracy Marra, penned a letter to Attorney General William Tong requesting “prompt action” to prevent the implementation of the Final Rule.
The request highlighted the recent injunctions, pending litigation and the recent U.S. Supreme Court decision Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine, which severely limits the ability of federal agencies to interpret law and issue regulations.
“Our constituents are asking us to delay making any changes to school policies or operations based on the new regulations,” the representatives wrote, adding that the Loper decision “imperils this new Title IX rule that expands the objective definition of ‘sex’ to include a subjective definition of ‘gender identity.’”
“By expanding the definition of ‘sex’ beyond what was contemplated by Congress when it enacted Title IX, the U.S. Department of Education has arguably exceeded its statutory authority,” they said. “The decision to change a fundamental definition in federal law should be considered by the Congress who can provide clear guidelines to the Department.”
The representatives also urged Tong to “protect women’s sports and fulfill the goal and spirit of Title IX” by preventing transgender girls from competing in girls’ sports.
In a letter sent to the state representatives Friday, Tong emphasized that the Final Rule “says nothing about athletics.”
“Connecticut’s schools already allow transgender high school students to compete in the gender with which they identify,” Tong said. “These policies are issued by the organizations and entities that sanction and supervise interscholastic sports.”
Tong said that there “is no legal basis” for Connecticut to seek an injunction against the Final Rule.
“The federal regulations add gender identity as a protected class under Title IX. These regulations are consistent with Connecticut law, which already forbids discrimination in education on the basis of gender identity or expression,” Tong said. “The State has no claim for an injunction because the federal regulations do not conflict with Connecticut law, and in fact are consistent with our statutes.”
What do proponents say?
Proponents of the injunctions in Connecticut are working to educate boards of education about the recent rulings and encourage students and families to join Moms for Liberty and Young America’s Foundation to boost the number of schools and universities covered under the injunction.
The Connecticut Chapter of the Foundation Against Intolerance and Racism has spearheaded a letter-writing campaign encouraging local school boards to stave off the Final Rule’s implementation. Danele Rhoads, the chapter’s leader, said the organization has “well over 500” members in the state.
Rhoads said she wants to see more resources directed to education in the classroom, not Final Rule enforcement. She also fears the Final Rule could open the door to lawsuits against districts.
Rhoads said she feels confident that the judiciary will overturn the new regulations entirely.
“I hope that these decisions are going to disentangle all of the different interpretations of Title IX that exist and just give us some really clear guidance,” Rhoads said.
Peter Wolfgang, the executive director of the Family Institute of Connecticut, said he and others are concerned that Final Rule will result in students being penalized for harassment if they do not use someone’s preferred pronouns.
Wolfgang echoed opposition to provisions in the Final Rule that prohibit schools from implementing transgender bathroom bans. He also argued that the rule would lead to the “destruction of women’s sports as we’ve known it” by allowing transgender athletes to compete on girls’ teams, a topic that was explicitly excluded from regulation in the Final Rule.
While Connecticut laws and regulatory policies protect the rights of transgender students to use bathrooms and participate on teams that align with their gender identity, Wolfgang said such issues should remain in state control, not federal interpretation.
“The real purpose of Title IX was to protect women,” Wolfgang said. “What we want is for our attorney general and the federal government to take the correct position and stick with the original meaning of Title IX instead of warping it for some sort of culture war agenda.”
Wolfgang said that in general, the Family Institute would like to see a return to “a normal understanding of the relationship between the sexes.”
“We’d like to see less of gender ideology. We’d like to see more respect for parental rights and for the fact that boys are boys and girls are girls,” Wolfgang said.
What do LGBTQ+ advocates say?
LGBTQ+ advocates in the state say that amid the legal challenges, they are reminding school boards and district leaders about their obligations — to follow state laws and protect students’ rights to an equal education.
“My concern is that public school leadership, administrators, etc. will choose to be cautious at the expense of students’ wellness and access to an equitable education,” Melissa Combs, founder of the Out Accountability Project, said.
“Every public school, whether or not they have someone who has enjoined this injunction order out of Kansas, still has an affirmative duty to create and maintain supportive learning environments for all students and to follow the state civil rights law,” Combs added.
Combs said that when school environments are not affirming, it can push students into fear-based absenteeism, poor academic performance, feelings of hopelessness and destructive behaviors like self-harm. Combs said caustic rhetoric attacking LGBTQ+ rights in the classroom has an equally harmful effect on youth.
Combs emphasized previous court decisions that ruled that “the discomfort of others is not a permissible basis for failing to accommodate an individual’s gender identity or expression or for implementing policies that discriminate against individuals on such bases.”
“Personal biases just are not grounds to deny access to an education for transgender and gender diverse youth,” Combs said. “Everyone should be getting the same education and when you’re denying it to a particular community you’re in violation of the law. Period.”
Jennifer Levi, a lawyer and senior director of transgender and queer rights at GLBTQ Legal Advocates and Defenders, said that the provisions of the Final Rule that have come under litigation are “simply straightforward codifications of court decisions that have held that Title IX protects LGBTQ students.”
“The goals of the regulations have been to provide clarity to schools,” Levi said. “These legal challenges have created confusion, and that’s unhelpful. It’s unhelpful to all students and it’s unhelpful to all educators.”
Levi stressed that Connecticut laws that ensure equal opportunities for LGBTQ+ students remain applicable and strong. Levi also explained that while the injunctions inhibit the U.S. Department of Education’s ability to enforce the Final Rule and investigate certain complaints, Title IX protections are still available to all students.
“It’s impactful and it’s harmful, but it doesn’t cut back on the scope of Title IX’s protections themselves,” Levi said.
Levi said any students who encounter discrimination or harassment at school should reach out for legal help.
“These lawsuits are, you know, another symptom of how divided and corrosive our national politics have become and that is certainly having an impact on students at the local level,” Levi said. “What is so unfortunate is that it’s put a target on LGBTQ students. … Schools have to be even more vigilant to ensure that all students in schools are safe and able to learn.”
What other states are affected?
Rulings from Broomes and three U.S. district judges presiding over other challenges to the 2024 Title IX Final Rule have blocked enforcement in a total of 21 states. Those states include Alaska, Arkansas, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.
Other pending lawsuits could bring injunctions to Alabama, Florida, Georgia, Oklahoma and South Carolina.
Broomes’ injunction applies across the country to any school with Young America’s Foundation, Female Athletes United or Moms for Liberty membership.
In a July 12 court filing , Moms for Liberty said it had over 130,000 members residing in more than 800 counties in every state except Vermont.
Of the more than 1,000 named schools and colleges that are covered by Broomes order, an Associated Press analysis found that 69% are located in states that are not subject to a statewide injunction.
On Monday, the Biden administration asked the U.S. Supreme Court to narrow the scope of injunctions in a handful of states and green light implementation of portions of the Final Rule that have not been challenged. Attempts to overturn other injunctive orders are pending in three federal appeals courts.
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