ction is limited to the states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia and prevents the new regulations from taking effect as scheduled on August 1, 2024. State of Tennessee v. Cardona, Case No. 2:24-072-DCR.The Court concluded that “sex” as understood in Title IX is limited to a fixed biological dichotomy and emphasized that the ruling of Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020) is limited to Title VII. Judge Reeves’ order found that the new rule contravenes the plain text of Title IX by redefining “sex” to include gender identity, that the regulations likely violate government employees’ and students’ First Amendment rights, and the rule is the result of arbitrary and capricious rulemaking.The Blocked 2024 Title IX RegulationsThe Department of Education recently amended regulations implementing Title IX by issuing a Final Rule: “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” 89 Fed. Reg. 33474 (Apr. 29, 2024). Under the 2024 regulations, it is clarified for Title IX purposes that “discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”Id. at 33476 (to be codified at 34 C.F.R. §106.10).The 2024 regulations also redefine “sexual harassment” as “sex-based harassment,” which means “sexual harassment and other harassment on the basis of sex, including on the basis described in 34 C.F.R. § 106.10…”. 34 C.F.R. 106.2—which, as cited above, includes sexual orientation and gender identity. Additionally, hostile environmental harassment is redefined to include “unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity…”34 C.F.R. 106.2 (effective Aug. 1, 2024)

unction/stay filed by the six plaintiff states: Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. Specifically, the Order enjoins and restrains the U.S. Department of Education from “implementing, enacting, enforcing, or taking any action in any manner to enforce” the 2024 Title IX regulations. Among the many arguments considered, the most notable to the Title IX practitioner include that the Court rejected the application of Bostock to Title IX and the expansive reading of the definition of “sex” under the new regulations, and found that the regulations likely violate the First Amendment in requiring the use of preferred pronouns. Notably, the decision does not address the changes to decision-maker resolution procedures, any rights to cross-examination or advisors, or any of the other procedural issues that post-secondary educational institutions would need to revise in their policies upon the regulations taking effect.The Court enjoined the entirety of the Final Rule, 89 FR 33474 (April 29, 2024), from going into effect on August 1, 2024, in the plaintiff states. Institutions of higher education in these states should consult with legal counsel prior to any plans to adopt revised policies based on the 2024 regulations, pending further decisions from the courts.Note: This decision is the second federal decision that has enjoined the Title IX regulations. On June 13, 2024, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana issued an order enjoining enforcement of the new regulations in Louisiana, Montana, Mississippi, and Idaho in State of Louisiana v. U.S. Dep’t of Educ., Case No. 3:24-CV-00563.[View source.]