Supreme Court rejects Biden administration’s request to enforce new civil rights protections for LGBTQ+ students

By Devan Cole and John Fritze, CNN

(CNN) — The Supreme Court on Friday turned down a request from the Biden administration to enforce parts of a new federal rule meant to protect LGBTQ+ and pregnant students from discrimination in 10 states where the rule was put on hold by federal judges.

The court announced its decision in an unsigned order that drew a partial dissent from the court’s three liberals and conservative Justice Neil Gorsuch.

The Supreme Court’s order is the latest blow to the Biden administration on the issue, which has suffered a series of setbacks with federal courts blocking a rule that was intended to protect transgender students. Much of the rule remains blocked in about half of the nation.

The sweeping rule issued in April clarified that Title IX’s ban on “sex” discrimination in schools covers discrimination based on gender identity, sexual orientation and “pregnancy or related conditions.” Other provisions address protections for pregnant and postpartum students, including access to lactation spaces and prohibitions on retaliation. Compliance with Title IX, which was enacted in 1972, is required for schools that receive federal aid.

All nine justices agreed to block the Biden administration’s clarification of sex discrimination. But those who dissented would have allowed other, less contested provisions of the new rule to take effect in the 10 states at issue.

Blocking enforcement of the “entire rule appears to go beyond what was necessary,” Justice Sonia Sotomayor wrote in dissent.

Pointing to provisions of the rule that deal with pregnancy discrimination or preemployment inquiries about a candidate’s marital status, Sotomayor said that the states “offer nothing to justify preventing the government from enforcing those parts of the rule.”

But the court’s brief per curiam opinion said that it was the government’s burden to demonstrate that those provisions could be separated from the ones that were challenged and “on this limited record … the Government has not provided this Court a sufficient basis to disturb the lower courts’ interim conclusions.”

Gorsuch’s decision to join Sotomayor’s partial dissent was notable, in part because he wrote a landmark majority opinion in 2020 that said gay and transgender Americans in the workplace should be protected from discrimination based on their “sex.”

The Supreme Court’s order means that the entire new rule will remain on hold for now in Tennessee, Kentucky, Ohio, Indiana, Virginia, West Virginia, Louisiana, Mississippi, Montana and Idaho. The rule is also blocked in 16 states as part of other lawsuits.

Technical legal fight could have widespread impact

Two separate lawsuits brought by the Republican attorneys general of the 10 states claimed that three specific provisions of the new rule are unlawful: the provision that expands the scope of “sex;” a provision that would bar schools from disallowing transgender students from using bathrooms or locker rooms consistent with their gender identity; and a provision clarifying that the law’s prohibition on “hostile-environment harassment” could implicate anti-trans conduct.

But in siding with the Republicans, two federal judges blocked enforcement in the 10 states of not just those three provisions but the entire new rule while the lawsuits moved forward. Federal appeals courts in New Orleans and Cincinnati turned down the Biden administration’s requests to scale back those injunctions so that the new rule could be partially enforced in the states, leading the federal government to ask the high court to intervene.

Solicitor General Elizabeth Prelogar, who oversees appeals on behalf of the federal government, wrote in court papers last month that the injunctions were overbroad and should have been limited to the provisions that the states said would cause them “irreparable harm.” She described the rule as being an “omnibus rule” with various parts that could be severed by federal judges examining the rule’s legality.

She asked the high court to allow the Department of Education to enforce provisions that prohibit discrimination based on pregnancy or pregnancy-related conditions like childbirth, termination of pregnancy or recovery from pregnancy. The states challenging the changes, Prelogar told the court, “do not contend – and the lower courts did not purport to hold – that those provisions conflict with Title IX, the Constitution, or any other federal law.”

She also pointed to an order issued by the Supreme Court earlier this year in a case concerning Idaho’s ban on gender-affirming care for trans youth. In that matter, the court allowed the state to partially enforce the ban, scaling back a sweeping order issued by a federal judge that would have blocked its enforcement.

A concurrence from Gorsuch criticizing the broad injunction in that case buttresses the federal government’s request in the Title IX matter, the solicitor general argued. In other words, in a case that worked against transgender students, the Supreme Court just recently limited lower courts from stepping in with far-reaching orders intended to block enforcement.

“Like the district court in (the Idaho case),” Prelogar wrote, the lower courts in the Title IX cases “‘clearly strayed from equity’s traditional bounds’ … by enjoining provisions that respondents had not challenged and that the court had not held to be likely unlawful.”

The legal fight is technical but has the potential for widespread impact. In a major win for LGBTQ rights, the Supreme Court’s 2020 ruling that a federal law barring workplace discrimination on the basis of “sex” necessarily offered protection for gay and transgender workers, too. That ruling was limited to the workplace, but other federal anti-discrimination laws – including Title IX – use nearly identical language. The big-picture question that will ultimately reach the Supreme Court is whether its logic in the workplace ruling should apply more broadly.

But in the current cases pending before the high court related to the new Title IX rules, Prelogar argued the states never even claimed they would be harmed by the change in definition. Instead, she said, they were focused on other provisions that implicated bathroom and pronoun policies. The states, she wrote, “have never suggested that they wish to violate the first provision … by punishing or excluding transgender students ‘simply for being … transgender.’”

This story has been updated with additional details.

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