2024 Title IX Regulations Vacated Nationwide: What You Need to Know Today

Holland & Knight previously explained how injunctions issued in many states blocked enforcement of 2024 Title IX regulations in those states (a list that eventually grew to 26 states) and how a Kansas federal district court's unique injunction against the U.S. Department of Education impacted certain schools nationwide, as well as how schools could navigate the resulting patchwork of regulatory application.

The Kentucky court's Jan. 9, 2025, opinion generally followed the rationale of its June 2024 decision that granted a preliminary injunction against the Education Department. The U.S. Court of Appeals for the Sixth Circuit refused to stay that preliminary injunction. On Aug. 16, 2024, the U.S. Supreme Court denied the Education Department's request for an emergency stay, rejecting the Education Department's argument that some portions of the regulations could be implemented while the courts analyzed and determined the validity of the most highly contested provisions, including the provision that explicitly defined sex discrimination as including discrimination on the basis of gender identity.

More specifically, the most recent decision granted summary judgment against the Education Department, holding that the 2024 regulations 1) exceed its authority under Title IX by extending the definition of discrimination on the basis of sex beyond "discrimination on the basis of being a male or female," 2) violate constitutional free speech protections by requiring schools and teachers to use "names and pronouns associated with a student's asserted gender identity" and a definition of sexual harassment that is too "vague and overbroad" for constitutional purposes, as well as violate the U.S. Constitution's Spending Clause by changing the definition of "sex discrimination" without sufficient warning to funding recipients and 3) are the result of arbitrary and capricious agency action. In the court's view, the Education Department failed to "provide a reasoned explanation" for relying upon the Supreme Court's decision in Bostock v. Clayton County (a Title VII employment case) to support its approaches to gender identity in the Title IX context and failed to show how its requirement of equal access to bathrooms and locker rooms could be squared with Title IX's allowance for segregation on the basis of sex in living facilities, fraternities and sororities.

The court could have chosen various remedies in light of its ruling, such as remanding the regulations back to the Education Department to correct the deficiencies it found, but opted instead in its judgment order for the relatively dramatic remedy of "vacatur," which permanently sets aside the 2024 regulations unless the court's ruling is successfully appealed. Even if the U.S. Department of Justice (DOJ) under the Biden Administration files an appeal (with a Sixth Circuit that has already supported the Kentucky district court's rationale), it is virtually certain that the Trump Administration's DOJ would withdraw that appeal. Therefore, for all practical purposes, the Kentucky court's decision effectively renders the 2024 regulations null and void nationwide.

Implications

Given the earlier adverse rulings and the upcoming change in presidential administrations, the pending question was when and how (and not if) the 2024 Title IX regulations would be jettisoned. The answer, as of Jan. 10, 2025, is now due to the Kentucky court's Jan. 9 opinion. Subject to future guidance that might be issued by the Education Department, covered institutions of higher education may consider these preliminary observations as they address how to proceed now:

• The prefatory language of the 2024 regulations provides, "For the reasons discussed in the preamble, the Secretary amends part 106 of title 34 of the Code of Federal Regulations as follows" and then proceeds to enumerate new rules that purported to replace various sections of the 2020 regulations. Unless the Education Department or a court takes a definitive contrary position, it may be argued tenably that that prefatory language was vacated along with the rest of the 2024 regulations, that the 2024 regulations have not effectively replaced the 2020 regulations, and, therefore, that the 2020 regulations remain in effect.
• As Holland & Knight previously explained, the Education Department took the position even at the preliminary injunction stage that schools not subject to the 2024 regulations should continue to follow the 2020 regulations. It would be very surprising if the Education Department changes this position in the face of a nationwide injunction on the merits.
• Because the 2024 regulations applied only to conduct that occurred on or after Aug. 1, 2024, and not retroactively, institutions of higher education have maintained their 2020 regulations-compliant policies and procedures in order to address Title IX-related misconduct that allegedly occurred prior to that date.
• Accordingly, absent contrary guidance from the Education Department, schools should elevate their former 2020-compliant policies and procedures back to a currently applicable policy and procedure status and retain their 2024 regulations-compliant policies and procedures only if deemed necessary in light of consultation with legal counsel.
• Schools that have begun to address cases involving Title IX-related misconduct allegedly occurring between Aug. 1, 2024, and Jan. 9, 2025, should consult with legal counsel regarding the best way to handle such matters going forward.
• Finally, once schools have clarified which policies and procedures will apply for the foreseeable future, they could choose to review their 2024-compliant policies to determine whether there are positive elements in them that they wish to import into their 2020 regulations-compliant policies as a matter of institutional prerogative (e.g., the availability of supports for pregnant students and policy-based prohibitions on discrimination on the basis of gender identity, however defined by the institution) and that may be added to their current 2020 regulations-compliant policies.

As always, if you have any questions about the issues summarized above, please reach out to the authors or another member of Holland & Knight's Education Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.