The Supreme Court said Friday it has turned down an appeal from the Biden administration and refused to lift court orders in 26 conservative states that blocked new Education Department rules extending anti-discrimination protections to transgender students.
The vote was 5-4.
The decision means the federal education law known as Title IX will forbid schools and colleges in half of the nation from discriminating against students based on their sexual orientation or gender identity, but not in the other half.
Last month Solicitor Gen. Elizabeth Prelogar urged the court to allow the rules to take effect nationwide except for disputed provisions involving bathrooms and locker rooms involving transgender students.
But in an unsigned order, the court denied her appeal on Friday.
The justices in the majority said they saw no reason to set aside the lower court rulings and decide on a temporary basis that the rule may take effect nationwide as lawsuits continue.
Conservative Justice Neil M. Gorsuch joined in dissent with liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
They said the lower courts erred in blocking the anti-discrimination rules from taking effect in all the states.
The new rules enforcing Title IX had been scheduled to take effect nationwide on Aug. 1.
The 1972 law said schools and colleges receiving federal funds may not discriminate “on the basis of sex.” The new rules, issued in late April, define that term to prohibit “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The administration relied on the high court’s ruling four years ago, which was written by Gorsuch and said the federal civil rights law that forbids job discrimination based on sex also protects transgender employees.
The new rules do not apply to school sports and athletic competitions. The Education Department said it will consider those issues in a separate regulation.
The provision of the new rules that has caused the most dispute says a school is deemed to discriminate on the basis of sex if it prohibits students from using a restroom or locker room that is consistent with their gender identity.
Republican state attorneys went to court seeking to block the rules from taking effect.
Louisiana Atty. Gen. Elizabeth Murrill said the administration had taken “Title IX and its promise of equal educational opportunities for both sexes and transformed it into a 423-page mandate that (among other things) allows boys in girls’ bathrooms, locker rooms, and hotel rooms and requires teachers and students to use a person’s preferred pronouns.”
She sued and won a court order from a federal judge which blocked the new rules from taking effect in her state and three others.
“The text of Title IX shows it was intended to prevent biological women from being discriminated against in education in favor of biological men,” said U.S. District Terry Doughty in Monroe, La. He said the Education Department did not have the authority to redefine the law to apply more broadly.
In all, six federal judges have blocked the new rules in 26 states. Three U.S. appeals courts have upheld those preliminary orders.
The new anti-discrimination rules will be in effect in California and the blue states. Earlier, California Atty. Gen. Rob Bonta and his counterparts in 14 other Democratic states had urged the Louisiana judge to uphold the broader anti-discrimination rules.
The Supreme Court has so far refused to rule directly on the issue. However, the justices have agreed to decide in their next term whether states may bar the use of hormones and other “gender affirming care” for transgender teens.
Republicans and Democrats have been divided for a decade on whether to extend anti-discrimination rules to transgender students.
The Trump administration refused to expand the discrimination rules under Title IX rules, but President Biden pledged to do so upon taking office.
He issued an executive order in March 2021 “guaranteeing an educational environment free from discrimination on the basis of sex, including sexual orientation or gender identity.” He said the Education Department should issue new Title IX rules “as soon as practicable.”
But it took until April this year for final rules to be issued.
In May, former President Trump said he would repeal them if he were reelected.
“We’re gonna end it on day one,” Trump said on a conservative talk radio show. “Don’t forget, that was done as an order from the president. That came down as an executive order. And we’re gonna change it — on Day 1 it’s gonna be changed.”
