On November 25, 2024, NWLC submitted an amicus brief in Arkansas et al. v. United States Secretary of Education et al., a Title IX case in the Eighth Circuit Court of Appeals. NWLC and Democracy Forward coauthored the brief, which argues that the district court erred in granting the plaintiffs’ motion for a preliminary injunction blocking enforcement of the Department of Education’s newly promulgated rule implementing Title IX in multiple states and individual schools across the country: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33474, 33476 (Apr. 29, 2024) (the “Rule”).
As the brief explains, the Rule provides, among other things, that the scope of prohibited sex discrimination under Title IX includes discrimination based on sexual orientation and gender identity. Schools must therefore permit transgender students to use school facilities, such as locker rooms and restrooms, consistent with their gender identity. In challenging the Rule, the brief argues, the plaintiffs drew on baseless fears and stereotypes to conjure up the specter of harm to the privacy and safety of cisgender students, when the reality is that no such threat exists. In fact, available data reflects that it is transgender students who are most at risk when schools do not permit them to use facilities that align with their affirmed gender, while the mere presence of transgender students in gender-aligned spaces presents no credible threat to their cisgender peers. In granting the injunction at issue here, the district court erroneously concluded that the plaintiffs were likely to succeed on the merits of their claim that the Rule should be vacated because, under Title IX, the term “sex” means only “biological sex”–a position that also contravenes most of the established legal precedent prior to the Rule’s promulgation. Thus, the brief argues, the Eighth Circuit should reverse the district court’s decision granting the injunction.