Recently, federal district courts in the Fifth and Sixth Circuits enjoined the new Title IX regulations in their entirety. These courts declined to sever three provisions that injure the plaintiff from the remainder of the scheme. Both courts of appeals declined to stay those rulings. The Solicitor General asked the Supreme Court to narrow those injunctions to three provisions that the plaintiffs allege injure them. By a 5-4 vote, the Court denied the SG's stay application in Department of Education v. Louisiana. The Court issued a per curiam opinion, which was joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Sotomayor dissented, joined by Justices Kagan, Gorsuch, and Jackson.
It would be wrong to assume that Justice Gorsuch is Bostocking again on transgender rights. The four dissenters upheld the injunction against that three critical provisions that redefine sex discrimination to include gender identity, regulate sex-separated facilities like bathrooms, and redefine hostile environment harassment. Sotomayor's dissent explains that the plaintiffs' "alleged injuries flow from those three provisions." And this measured dissent, which lacks any of the vitriol we've seen of late, was probably tailored to keep Justice Gorsuch's join. Sotomayor explains:
For now, on the briefing and record currently before us, I would stay the preliminary injunctions except as to the three provisions above, in keeping with the traditional principle of equitable remedies that"relief afforded [to] the plaintiffs" must not "be more burdensome than necessary to redress the complaining parties." . . .
At this juncture, however, enjoining the application of any other part of the Rule needlessly impairs the Government from enforcing Title IX and deprives potential claimants of protectionsagainst forms of sex discrimination not at issue in respondents' suit.
