Conservative Supreme Court Justice Neil Gorsuch sided with his liberal colleagues on Friday by dissenting from the majority’s decision to deny the Biden administration’s request to block a lower court injunction on Title IX rules.
In 2021, President Joe Biden issued an executive order and the Department of Education (DOE) adopted new rules that in part reversed a Trump-era interpretation that excluded gender identity and sexual orientation from being protected under Title IX, a 1972 civil rights law that bans sex-based discrimination in education.
Several Republican-led states that have been attempting to roll back LGBTQ+ rights filed lawsuits over the new rules, with two suits—Department of Education v. Louisiana and Cardona v. Tennessee—resulting in lower federal courts temporarily blocking the entirety of the new rules while the cases play out in appeals court.
The rules, which were finalized earlier this year and went into effect August 1, are currently banned from being enforced in a total of 26 states due to Republican lawsuits.
In a 5-4 majority decision on Friday, the Supreme Court declined a DOE emergency request to reinstate portions of the new rules that are not related to gender identity and sexual orientation, with the majority writing that they were not given “a sufficient basis to disturb the lower courts’ interim conclusions.”
Gorsuch joined liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson in dissent, arguing that the gender identity and sexual orientation rules should be paused during the appeals because they are related to alleged “injuries” suffered by the states, but the rest of the new rules should resume.
“I would grant most of the Government’s stay requests and leave enjoined only its enforcement of the three challenged provisions,” Sotomayor wrote in the dissent. “The lower courts went beyond their authority to remedy the discrete harms alleged here.”
Friday’s decision does not indicate how the Supreme Court might rule on any of the new Title IX rules, including the provisions regarding gender identity and sexual orientation.
“While we do not agree with this ruling, the Department stands by the final Title IX regulations released in April 2024, and we will continue to defend those rules in the expedited litigation in the lower courts,” a DOE spokesperson said in an email to Newsweek.
“The schools that are not enjoined within the 24 states are obligated to comply with the final 2024 Title IX regulations and we look forward to working with school communities all across the country to ensure the Title IX guarantee of nondiscrimination in school is every student’s experience,” they added.
“I am grateful that the Supreme Court of the United States agreed that no part of the Biden administration’s Title IX rule should go into effect while the case proceeds,” Tennessee Attorney General Jonathan Skrmetti said in a statement emailed to Newsweek. “This is a win for student privacy, free speech, and the rule of law.”
Ria Tabacco Mar, director of the American Civil Liberties Union’s Women’s Rights Project, said in a statement that the lawsuits were being used as “attacks on trans kids as a way to roll back other rights for women and girls.”
“Attacking trans people does nothing to address the real problems women and girls face,” she said. “We’re disappointed the Supreme Court allowed these cruel and hypocritical tactics to succeed, even temporarily. We will continue to fight for all students to learn in safe and equal schools.”
Cathryn Oakley, the Human Rights Campaign’s senior director of legal policy, said in a statement emailed to Newsweek that it was “disappointing that the Supreme Court has allowed far-right forces to stop the implementation of critical civil rights protections for youth.”
“Every young person deserves the opportunity to be able to access a public education without discrimination because of who they are,” Oakley said. “That’s why the Biden-Harris administration issued these regulations—which apply a legal interpretation issued by the U.S. Supreme Court itself—and that’s why MAGA extremists challenged them in federal court.”
While the suits from Republican states are focused on alleged “irreparable harm” caused by issues like allowing transgender students to use bathrooms that correspond to their gender identities, the Biden administration’s new Title IX rules also include several entirely unrelated provisions that are currently blocked from being enforced in many states.
Biden Title IX rules also include bans on discrimination based on pregnancy and breastfeeding, a requirement for schools to accommodate students who are breastfeeding, allowing foster parents and other authorized caregivers to legally represent minors and a prohibition on schools retaliating against students who file Title IX complaints.
In 2021, Gorsuch joined Chief Justice John Roberts and the court’s then-four liberal justices in ruling that gender identity and sexual orientation are included in a prohibition on sex-based employment discrimination under Title VII of the Civil Rights Act of 1964.
Update 08/16/24, 9:48 p.m.: This article was updated with new comment and further information.
