This resource is provided by ACSA Partner4Purpose Lozano Smith.
On January 9, 2025, in the matter of Tennessee v. Cardona, a federal district court in Kentucky issued an order to vacate the 2024 Title IX Regulations. This set in motion another major shift in the variable history of Title IX.
Tennessee v. Cardona (“Cardona”)
In Cardona, the crux of the plaintiffs’ (the states of Tennessee, Ohio, Indiana, West Virginia, Kentucky, and Virginia) legal challenge regarding the 2024 Title IX Regulations centered around whether the protected status of “sex” could include “gender identity.” Ultimately, the court found it could not and granted summary judgment to the plaintiff states, vacating the 2024 Title IX Regulations in their entirety. The court based its holding on three legal arguments.
First, the court found that by interpreting “sex” to include the concept of “gender identity,” the U.S. Department of Education (Dept. of Ed.) exceeded its statutory authority. In defense of its inclusion of “gender identity,” the Dept. of Ed. argued that the holding in Bostock v. Clayton County, Georgia (2020) 590 U.S. 644 (Bostock) (i.e., that discrimination based on “gender identity” and “sexual orientation” constituted “sex discrimination” under Title VII) extended to Title IX. The court rejected this argument, instead finding that the holding in Bostock was narrowly tailored to Title VII. The court, articulating a distinction between the language of Title VII (“because of sex”) and the language of Title IX (“on the basis of sex”), said “when Title IX is viewed 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.”
Second, the court found the 2024 Title IX Regulations violated the U.S. Constitution. The court reasoned that the inclusion of “gender identity” in the 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.” According to the court, this constituted chilling of speech in violation of the First Amendment. The court further opined that the terms of the 2024 Title IX Regulations were “so vague that recipients of Title IX funds have no way of predicting what conduct will violate the law.” As such, the 2024 Title IX Regulations were “vague and ambiguous” and therefore violated the Spending Clause requirement that legislation conditioning the receipt of federal funds must “impose unambiguous conditions.”
Third, the court found that the 2024 Title IX Regulations were “arbitrary and capricious.” The court reasoned that allowing for separation based on sex in some circumstances (social fraternities and living facilities) but not in others (bathrooms) was arbitrary and capricious.
Rather than removing the portions of 2024 Title IX Regulations the court found impermissible, the court vacated the 2024 Title IX Regulations as a whole. “Vacatur” is a legal concept that allows courts to wipe the slate clean, in this case reaching back in time to do so, as though the 2024 Title IX Regulations never existed.
With the 2024 Title IX Regulations vacated, the 2020 Title IX Regulations are now back in effect in all jurisdictions.
The Department of Education’s Response to Cardona
The Dept. of Ed. did not appeal the Cardona ruling. Rather, in the week following the Cardona ruling, the Dept. of Ed. quietly added to their website the following disclaimer above their 2024 Title IX Regulations resources guides:
“Consistent with the court’s order, the 2024 Title IX regulations and these resources are not effective in any jurisdiction.”
January 20, 2025 Executive Order
On January 20, 2025, President Trump’s first day in office, he signed a slew of executive orders. Executive Order 14099, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” defines “sex” as an “individual’s immutable biological classification as either male or female,” and states that “‘sex’ is not a synonym for and does not include the concept of ‘gender identity.’” Executive Order 14099 also states that the Bostock opinion is not to be extended to Title IX.
LGBTQ+ Protections in California
The Cardona ruling and Executive Order 14099 significantly impact the legal rights of LGBTQIA+ individuals at the federal level. In California, state law still affords LGBTQIA+ individuals protections against discrimination and harassment on the basis of their “gender identity” and “sexual orientation.”
Takeaways
1. The 2020 Title IX Regulations are currently in effect in every jurisdiction.
Educational Institutions who receive federal funds must once again shift gears back to the 2020 Title IX Regulations. This means:
- Revising applicable Board Policies and Administrative Regulations to comply with the 2020 Title IX Regulations;
- Revising notices and templates to comply with the 2020 Title IX Regulations;
- Training, or retraining, staff to comply with the 2020 Title IX Regulations; and
- Processing all new complaints alleging “sex discrimination,” including “sexual harassment,” in accordance with the 2020 Title IX Regulations.
2. Effect on Complaints Processed Under the 2024 Title IX Regulations.
Because the 2024 Title IX regulations were vacated, it is as though they were never in effect. Educational Institutions who receive federal funds should consult with legal counsel regarding the legal implications for Title IX investigations that were initiated between August 1, 2024, and January 9, 2025.
Lozano Smith is monitoring additional developments in this area and will issue further guidance as needed. If you have any questions about Title IX, the Cardona ruling, or the effect of related Executive Orders, please contact your Lozano Smith attorney or Client Services.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this Client News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
If you have any questions about Title IX or would like to discuss policies and training resources, please contact any attorney at one of our eight offices located statewide.
Leave a Comment