The Supreme Court on Tuesday invited two Republican-led states to respond to an effort by the Justice Department to enforce parts of a new Biden administration Title IX rule in locations where court orders have temporarily blocked the entire regulation.
The move follows a pair of petitions filed by U.S. Solicitor General Elizabeth Prelogar to the Supreme Court on Monday asking the justices to review the preliminary injunctions arising from cases in Louisiana and Tennessee after both the 5th and 6th U.S. Circuit Courts of Appeals denied the Department of Education 's effort to allow portions of the rule to take effect. The preliminary injunctions affect 10 GOP-led states that sued the Department of Education over its new Title IX rules, which changed the definition of sex to include gender identities.
The DOJ argues the court orders blocking the entire rule are too broad and would block the Education Department from "implementing dozens of provisions of an important Rule effectuating Title IX, a vital civil rights law protecting millions of students against sex discrimination," according to the DOJ briefs. The DOJ seeks to lift a lower court injunction on most parts of the Title IX rule but concedes that holds can remain over the definition of sex while litigation proceeds.
But the 6th Circuit held the unlawful part on gender identity permeates the rule so broadly that it would be unreasonable for a court to pick and choose which parts should go into effect and which shouldn’t.
Biden's three-month-old Title IX rewrite has sustained multiple blows in federal court ahead of its Aug. 1 implementation date, as the entire rule has been fully blocked in 15 states due to the legal challenges.
Attorneys general offices in Louisiana and Tennessee who have led the challenges argue the Biden administration is attempting to implement the Title IX changes by deliberately misinterpreting a 2020 Supreme Court decision known as Bostock v. Clayton County that shields employees from discrimination based on gender identity.
Conservatives are aggressively attempting to challenge the policy, as they say it would allow biological males to play on girls' sports teams. The Biden administration has countered that the rule does not apply to athletics.
Meanwhile, the Supreme Court is currently being petitioned by GOP-led states Idaho and West Virginia to take up their appeals of lower court rulings that blocked state laws that would prevent biological males from competing on girls' sports teams. The justices have not yet said whether they will weigh that issue on the merits.
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Given the contentious battle over Title IX and rulings unfavorable to laws aiming to protect girls' sports teams, the high court term this fall is shaping up to have a keen focus on a major culture war dispute that has brewed in recent years.
The high court requested responses from Louisiana and Tennessee by Friday at noon.
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