US supreme court justices have ruled that president Joe Biden’s expanded Title IX protections cannot be enforced in 26 states where legal challenges are ongoing. 

Title IX is a landmark piece of civil rights legislation which protects people from discrimination based on sex, in education programmes or activities that receive federal financial assistance, and is best-known for ensuring gender equality in college sports.

In April, Biden finalised the new anti-discrimination rules – first proposed in 2022 – which aim to protect people in public schools from sex-based discrimination and harassment, providing explicit protections for LGBTQ+ pupils and expressly prohibiting discrimination based on sexual orientation and gender identity.

However, before the amendments could take effect, several Republican-controlled states vowed to reject the law, suing the Biden administration and labelling the legislation “illegal, undemocratic and divorced from reality”, claiming it puts “women at risk”. 

On Friday (16 August), in a 5-4 vote, the US Supreme Court denied the administration’s request to allow most of the Title IX rule to go into force where courts have issued injunctions temporarily blocking it. 

“In this emergency posture in this court, the burden is on the government as applicant to show, among other things, a likelihood of success on its… argument…” the ruling reads. “On this limited record, the government has not provided this court [with] a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with, and affect, other provisions of the rule. 

“Nor has the government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect. Moreover… the Sixth Circuit has already expedited its consideration of the case and scheduled oral argument for October. 

“The court expects that the Courts of Appeals will render their decisions with appropriate dispatch. In light of all of the circumstances, the court denies the government’s applications for partial stays.” 

‘Cruel and hypocritical tactics

In response, Ria Tabacco Mar, the director of the American Civil Liberty’s (ACLU) Women’s Rights Project, said such lawsuits are “using attacks on trans kids as a way to roll back other rights for women and girls”. 

She went on to say: “Attacking trans people does nothing to address the real problems women and girls face. We’re disappointed the Supreme Court allowed these cruel and hypocritical tactics to succeed, even temporarily. We will continue to fight for all students to learn in safe and equal schools.”

Jennesa Calvo-Friedman, a senior ACLU staff lawyer, said: “The new guidance from the Biden administration is crucial to clarifying the protections under Title IX for so many students, including transgender and other LGBTQ students, pregnant and parenting students, and other students facing sex-based harassment.

“But even without it, students are not unprotected.

“Despite what the Supreme Court did today, students can still bring private lawsuits against schools to vindicate their Title IX rights, including based on their gender identity or their pregnancy or parenting status, even in places where the rule is blocked.

“Schools should be aware that sex-based discrimination, including harassment, is unlawful, and students can still hold schools accountable. What’s more, schools do not have to wait for a mandate to adopt practices that welcome all kids. Trans-inclusive policies are still lawful, and schools can – and should – move forward with them.”