District Court Vacates Department of Education’s Final Rule Related to Title IX Protections and Gender Identity

By Bill Ojile, Claudia E. Stedman, and Lilly M. Harris

On January 9, 2025, a Kentucky District Court vacated the Department of Education’s (the “Department”) 2024 Title IX final rule (the “Final Rule”) in State of Tennessee v. Cardona, on the basis that the Final Rule is contrary to law, violates the U.S. Constitution, and is arbitrary and capricious.¹ The Final Rule included provisions prohibiting discrimination on the basis of gender identity. With this new ruling, and the vacatur applying nationwide, the 2020 Title IX final rule and prior Title IX regulations have gone back into effect. Institutions subject to Title IX (i.e., educational programs and activities receiving federal funds from the Department) should monitor any future appeals, await further guidance from the Department, and assess whether their current policies comply with existing Title IX laws and their implementing regulations.

The Final Rule and Regulations

On his first day in office, President Biden issued an Executive Order declaring all federal laws that prohibit sex discrimination, by default, also “prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”² A few months later, President Biden issued a second Executive Order declaring that “students should be guaranteed an educational environment free from discrimination . . . on the basis of sexual orientation or gender identity” and directed the Department to issue new guidance as needed, to achieve that objective.³

In response to President Biden’s Executive Orders, the Department issued new Title IX regulations effective August 1, 2024, which prohibit discrimination “on the basis of sex.”⁴ Among other things, the Final Rule clarified:

The Legal Challenge

The day after the Final Rule went into effect, multiple states joined a lawsuit in Kentucky seeking an injunction to block the Final Rule’s enforcement. The plaintiffs, joined by intervenors Christian Educators Association International and a fifteen-year-old female student athlete, argued the Final Rule was invalid because (1) the Department exceeded its statutory authority in promulgating it; and (2) the Final Rule was contrary to law.

Early in the litigation, the Kentucky District Court issued a preliminary injunction restraining the Department from enforcing the Final Rule in those states that had joined the lawsuit.⁵ Later, both sides moved for summary judgment, arguing there were no genuine issues of material fact and that the law was in their favor.

The District Court ruled in favor of the plaintiffs and vacated the Final Rule nationwide.⁶ The Court found that the Department exceeded its statutory authority when it promulgated the Final Rule because “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 male or female.” Additionally, the Court determined the Final Rule to be contrary to existing law because it violated the First Amendment and the Spending Clause, was vague and overbroad, and was arbitrary and capricious. The vacatur took the Final Rule “off the books” in its entirety and prevents its future application. The District Court also explained that the “vacatur of the Final Rule would simply ‘cause a return to the status quo’ that existed for more than 50 years prior to its effective date,”⁷ meaning that the 2020 Title IX final rule and prior regulations have gone back into effect.

How Should Entities Subject to Title IX Respond?

The District Court’s ruling may not be the final say in litigation regarding the Final Rule. Normally, the Department would be expected to appeal immediately to the Sixth Circuit, but the change in administration later this month may impact whether further litigation occurs. Schools that changed their Title IX policies in 2024 should review their previous Title IX policies, ensure that those policies and procedures comply with Title IX, and should be ready to re-issue those prior policies, assuming there is no additional litigation or agency action regarding the Final Rule. Snell & Wilmer’s special litigation and compliance team will continue to monitor these Title IX developments and is available to provide guidance on these regulatory changes.