The “New” 2024 Title IX Rule Struck Down by Kentucky Federal Court – with Nationwide Effect
Mar 04, 2025The decision marks a return to the 2020 Title IX regulations
All schools and institutions of higher education that receive federal funding became subject to new Title IX rules last summer. Published in April 2024 by the United States Department of Education, and effective August 1, 2024, the rule changed the government’s understanding of protected groups. The 2024 updated Title IX rule expanded the legal concept of “sex-based harassment” to encompass harassment based on sex characteristics, sex stereotypes, sexual orientation, gender identity, and “pregnancy and related conditions. ” The rule also expanded Title IX to formally include “gender identity” in the definition of sex, clarifying that individuals identifying as LGBTQ+ are protected under Title IX against gender identity or sexual orientation discrimination.
On January 9, 2025, the United States District Court for the Eastern District of Kentucky vacated the rule nationwide. The Court — in Tennessee v. Cardona — held that the Department of Education (DOE) lacked the authority to expand the definition of Title IX to include the prohibition of discrimination based on “gender identity.”
… 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 a male or female… As this Court and others have explained, expanding the meaning of “on the basis of sex” to include “gender identity” turns Title IX on its head. While Title IX sought to level the playing field between men and women, it is rife with exceptions that allow males and females to be separated based on the enduring physical differences between the sexes…
The Court also said that the 2024 final rule probably violated the First Amendment by hypothetically requiring the use of names and pronouns associated with an individual’s gender identity.
…the plaintiffs reasonable fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity- based pronouns would constitute harassment under the Final Rule. Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner.
The ruling is aligned with the Trump Administration’s sentiments on this issue. That administration’s Executive Order issued on January 20, 2025, entitled “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government,” stated that sex is biologically determined, consists only of male and female classifications, and cannot be changed.
That order asserts:
These sexes are not changeable and are grounded in fundamental and incontrovertible reality… ‘sex’ is not a synonym for and does not include the concept of ‘gender identity.’
What Now?
On January 31, 2025, the DOE issued a press release titled “U.S. Department of Education to Enforce 2020 Title IX Rule Protecting Women, reiterating the “return to enforcing Title IX protections on the basis of biological sex in schools and on campuses.”
Schools would be wise to immediately reactivate their 2020 Title IX policies, practices, and procedures, unless the DOE (to the extent the DOE continues to exist) provides contrary guidance. And with a national injunction in place, the DOE is unlikely to change its position on this matter given the Trump Administration’s beliefs on this topic.
Schools should also review all their materials—publications, handbooks, websites—and update them to comply with the 2020 Title IX rule. To avoid confusion, it might be beneficial to retrain faculty, staff, and students about 2020 Title IX policies, and how those policies could impact what they do.
Consultation with legal counsel is recommended if an institution wishes to retain any component of the 2024 Title IX policies. The first step is identifying and clarifying the specific 2020 Title IX policies that will apply for the foreseeable future. Then, together with counsel, revisit the 2024 Title IX policies to determine if it is worthwhile to integrate any specific components of thosepolicies into your overall plan, such as:
- The development of internal, policy-based prohibitions on discrimination based on gender identity. “Gender identity” would be defined by the institution.
- Maintaining the availability of support for pregnant students. Schools that choose to maintain protections from discrimination or harassment for students based on gender identity and similar traits — as a matter of internal school policy — should be aware that there is a risk the government, or other parties, may seek to litigate whether such protections are lawful.
If you have any questions or concerns about these emerging issues — or would like assistance reviewing your Title IX policies and procedures for compliance purposes — don’t hesitate to contact Orr & Reno.
