Neil Gorsuch’s New Dissent Baffles Conservatives

Supreme Court Justice Neil Gorsuch‘s dissent breaking from the conservative Court’s majority decision to deny the Biden administration’s request to block a lower court’s injunction on Title IX rules has baffled conservatives on social media.

In a 5-4 decision on Friday, the Court denied an emergency request from the Department of Education (DOE) to reinstate provisions from the Biden administration’s rule that sought to include gender identity and sexual orientation as protected categories under Title IX—legislation that protects against sex-based discrimination in schools.

The Biden administration’s Title IX changes have prompted several Republican state attorneys general to seek blocks on the rule’s implementation, which went into effect nationwide on August 1. The rules are currently banned from being enforced in a total of 26 states due to the lawsuits.

Gorsuch, who was nominated by then-President Donald Trump in 2017, broke with the conservative judges and joined Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in dissent.

Sotomayor authored the dissenting opinion, claiming that the “injunctions are overbroad,” and should be limited to specific challenged provisions, rather than the entire rule. The dissent called for “more tailored relief.” It will now return to a lower court.

Newsweek has filed an online contact request form with the Supreme Court for comment via email on Saturday.

Meanwhile, Gorsuch’s move has sparked criticism from some conservatives on X, formerly Twitter.

Senator Mike Lee, a Utah Republican, shared a social media post celebrating the majority’s decision and asked, “What happened to Justice Gorsuch here?”

Macy Gunnell, a correspondent for the conservative news website Campus Reform, expressed a similar sentiment to Lee’s X post and wrote: “Someone check on Gorsuch…what happened here?”

Another X user, Domenica D’Elia, who celebrates Donald Trump’s Make America Great Again (MAGA) movement in her biography, wrote, “Neil Gorsuch joined the other 3 liberal Judges. Why would he join these liberals, that’s weird.”

User @ProudElephantUS, who has over 393,000 followers on X, referred to the dissenting justices as “the usual suspects” in a Friday evening post.

Meanwhile, 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 a previous 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.”

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.