Oklahoma State of v. Cardona

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, )

)

Plaintiff, )

)

vs. ) Case No. CIV-24-00461-JD

)

MIGUEL CARDONA, in his official capacity )

as the Secretary of Education; and UNITED )

STATES DEPARTMENT OF EDUCATION, )

)

Defendants. )

ORDER

“Our Constitution divided the ‘powers of the new Federal Government into three

defined categories, Legislative, Executive, and Judicial.’” Free Enter. Fund v. Pub. Co.

Acct. Oversight Bd., 561 U.S. 477, 483 (2010) (quoting Immigr. & Naturalization Serv. v.

Chadha, 462 U.S. 919, 951 (1983)). Our founders understood that, “[t]o safeguard

individual liberty, ‘[s]tructure is everything.’” Loper Bright Enters. v. Raimondo, 144 S.

Ct. 2244, 2275 (2024) (Thomas, J., concurring) (second alteration in original) (quoting A.

Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 Notre

Dame L. Rev. 1417, 1418 (2008)). So, “[b]ecause the Constitution gives the Executive

Branch only ‘[t]he executive Power,’ executive agencies may constitutionally exercise

only that power.” Id. at 2274 (second alteration in original) (quoting Art. II, § 1, cl. 1).

With these principles in mind, the Court tackles a question, at least preliminarily,

that has not yet been addressed by the Supreme Court of the United States or the United

States Court of Appeals for the Tenth Circuit: whether an agency exceeds its authority by

deciding that sex discrimination under Title IX of the Education Amendments Act of

1972, 20 U.S.C. § 1681 et seq. (“Title IX”), includes discrimination based on gender

identity.

Before the Court is the State of Oklahoma’s (“State”) Motion for Preliminary

Injunction [Doc. No. 21]. The State seeks to preliminarily enjoin the United States

Department of Education (“Department”) from enforcing its new Title IX regulation:

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving

Federal Financial Assistance, 89 Fed. Reg. 33474 (Apr. 29, 2024) (to be codified at 34

C.F.R. § 106, et seq.) (“Final Rule”). The Final Rule consists of 423 pages.1

Defendants Miguel Cardona, in his official capacity as the Secretary of Education,

and the United States Department of Education (collectively, “Department”) filed a

response [Doc. No. 40], and the State filed a reply [Doc. No. 43]. The Court also

considers the State’s supplement [Doc. No. 41] and the amicus brief filed by the states of

New Jersey, California, Pennsylvania, Colorado, Delaware, District of Columbia, Hawaii,

Illinois, Massachusetts, Michigan, Minnesota, New York, Oregon, Rhode Island,

Vermont, and Washington [Doc. No. 45]. The parties also filed notices of supplemental

authority. [Doc. Nos. 46, 47].

Upon review and consideration, and for the following reasons, the Court grants the

State’s Motion.

1 This is according to https://www.govinfo.gov/content/pkg/FR-2024-04-

29/pdf/2024-07915.pdf (last visited July 30, 2024), which is a three-column format PDF.

According to Westlaw, the Final Rule is 664 pages in PDF format. 89 Fed. Reg. 33474,

2024 WL 1833438.

I. BACKGROUND

On April 29, 2024, the Department published the Final Rule. The Final Rule seeks

to “amend[] the regulations implementing Title IX” and “better align the Title IX

regulatory requirements with Title IX’s nondiscrimination mandate.” 89 Fed. Reg. at

33474.

The Final Rule “clarif[ies] that sex discrimination includes discrimination on the

basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual

orientation, and gender identity.” Id. at 33476 (to be codified as 34 C.F.R. § 106.10). It

also imposes a “de minimis harm” standard, which states

[i]n the limited circumstances in which Title IX or this part permits

different treatment or separation on the basis of sex, a recipient must not

carry out such different treatment or separation in a manner that

discriminates on the basis of sex by subjecting a person to more than de

minimis harm, except as permitted by 20 U.S.C. 1681(a)(1) through (9) and

the corresponding regulations §§ 106.12 through 106.15, 20 U.S.C. 1686

and its corresponding regulation § 106.32(b)(1), or § 106.41(b). Adopting a

policy or engaging in a practice that prevents a person from participating in

an education program or activity consistent with the person’s gender

identity subjects a person to more than de minimis harm on the basis of sex.

Id. at 33887 (to be codified as 34 C.F.R. § 106.31(a)(2)).

The Final Rule also changes Title IX’s harassment regulations. Currently, sexual

harassment is defined as “conduct on the basis of sex” that is “[u]nwelcome conduct

determined by a reasonable person to be so severe, pervasive, and objectively offensive

that it effectively denies a person equal access to the recipient’s education program or

activity.” 34 C.F.R. § 106.30 (emphasis added). The Final Rule changes this term to “sex-

based harassment” and defines it as “sexual harassment and other harassment on the basis

of sex, including on the bases described in § 106.10.” 89 Fed. Reg. at 33884 (to be

codified as 34 C.F.R. § 106.2). “Hostile environment harassment” is then defined as

“[u]nwelcome sex-based conduct that, based on the totality of the circumstances, is

subjectively and objectively offensive and is so severe or pervasive that it limits or denies

a person’s ability to participate in or benefit from the recipient’s education program or

activity.” Id. (emphasis added). Plus, now “a recipient has an obligation to address a sex-

based hostile environment under its education program or activity, even when some

conduct alleged to be contributing to the hostile environment occurred outside the

recipient’s education program or activity or outside the United States.” Id. at 33530.

The Final Rule does not “articulate a specific definition of ‘gender identity,’” but

“[t]he Department understands gender identity to describe an individual’s sense of their

gender, which may or may not be different from their sex assigned at birth.” Id. at 33809.

Recipients of federal funds may “rely on a student’s consistent assertion to determine

their gender identity, or on written confirmation of the student’s gender identity by the

student or student’s parent, counselor, coach, or teacher.” Id. at 33819. They may not,

however, “requir[e] a student to submit to invasive medical inquiries or burdensome

documentation requirements to participate in a recipient’s education program or activity

consistent with their gender identity.” Id.

The Final Rule takes effect on August 1, 2024. States and their schools risk losing

federal funding if they do not comply with the Final Rule. 20 U.S.C. § 1681. Various

states and entities filed lawsuits challenging the Final Rule and seeking to enjoin its

enforcement. To the best of the Court’s knowledge, almost every district court judge that

has ruled on a preliminary injunction in those cases has granted one and preliminarily

enjoined enforcement of the Final Rule.2

In Oklahoma, there are 1,805 public school sites serving primary and secondary

school-aged children. Okla. Dep’t of Educ., Oklahoma Public Schools: Fast Facts 2021-

22, https://sde.ok.gov/sites/default/files/documents/files/Fast%20Facts%202021-22.pdf

(last visited July 30, 2024). In 2023, the federal government allocated $224,659,304 to

the Oklahoma State Department of Education to fund Oklahoma schools. Off. of

Elementary & Secondary Educ., Funding Status & Awards, Dep’t of Educ.,

https://oese.ed.gov/offices/office-of-formula-grants/school-support-and-

2 So far, the cases in which courts have preliminarily enjoined enforcement of the

Final Rule include: Louisiana v. U.S. Dep’t of Educ., --- F. Supp. 3d ----, 2024 WL

2978786, at *21 (W.D. La. June 13, 2024), appeal docketed, No. 24-30399 (5th Cir. June

25, 2024); Tennessee v. Cardona, --- F. Supp. 3d ----, 2024 WL 3019146, at *44 (E.D.

Ky. June 17, 2024), appeal docketed, No. 24-5588 (6th Cir. June 26, 2024); Kansas v.

U.S. Dep’t of Educ., --- F. Supp. 3d ----, 2024 WL 3273285, at *22 (D. Kan. July 2,

2024), appeal docketed, No. 24-3097 (10th Cir. July 11, 2024); Texas v. United States,

No. 2:24-CV-86-Z, 2024 WL 3405342, at *16 (N.D. Tex. July 11, 2024); Carroll Indep.

Sch. Dist. v. U.S. Dep’t of Educ., --- F. Supp. 3d ----, 2024 WL 3381901, at *7 (N.D. Tex.

July 11, 2024); and Arkansas v. U.S. Dep’t. of Educ., No. 4:24 CV 636 RWS, 2024 WL

3518588, at *23 (E.D. Mo. July 24, 2024). In Alabama v. Cardona, No. 24-533, slip op.

at 122, (N.D. Ala. July 30, 2024), the district judge denied the State of Alabama’s motion

for a preliminary injunction. See Defs.’ Notice [Doc. No. 47].

The Fifth Circuit denied a request to stay a preliminary injunction in Louisiana ex

rel. Murrill v. U.S. Dep’t of Educ., No. 24-30399, 2024 WL 3452887, at *1 (5th Cir. July

17, 2024). The Sixth Circuit denied a request to stay a preliminary injunction in

Tennessee v. Cardona, No. 24-5588, 2024 WL 3453880, at *1 (6th Cir. July 17, 2024).

The Department has filed applications for a partial stay of the injunction at the Supreme

Court, but as of this Court’s last review of the Supreme Court docket, the Supreme Court

has not yet acted. See Dep’t of Educ. v. Louisiana, (No. 24A78); Cardona v. Tennessee,

(No. 24A79).

accountability/title-i-part-a-program/funding-status/ (last visited July 30, 2024). All these

schools receive federal funds, and thus, are Title IX recipients.3

The State filed suit on May 6, 2024, seeking declaratory judgment in its favor,

vacatur of the Final Rule, and a permanent injunction keeping the Department from

withholding Title IX funding from the State for refusal to comply with the Final Rule. It

filed its Motion on June 28, 2024. Expedited briefing concluded on July 18, 2024. Given

this timeframe, the quantity of legal challenges to the Final Rule, and the quality of the

recent orders filed in the cases granting preliminary injunctions, the Court will not fully

restate the regulatory landscape or Title IX’s history. Instead, the Court focuses its

analysis on the portions of the 423-page Final Rule that are directly relevant to resolving

the State’s Motion.

II. LEGAL STANDARD

To obtain a preliminary injunction, the State must show the following elements

weigh in its favor: “‘(1) [it] is substantially likely to succeed on the merits; (2) [it] will

suffer irreparable injury if the injunction is denied; (3) [its] threatened injury outweighs

the injury the opposing party will suffer under the injunction; and (4) the injunction

would not be adverse to the public interest.’” Brooks v. Colo. Dep’t of Corr., 730 F.

3 The Department does not dispute that the State receives funds from the federal

government, nor does it dispute the quantity of those funds. See Dine Citizens Against

Ruining Our Env’t v. Haaland, 59 F.4th 1016, 1028 n.5 (10th Cir. 2023) (“It is within this

court’s discretion to take judicial notice of a fact or a document. ‘Judicial notice is proper

when a fact is beyond debate.’” (internal citation omitted) (quoting The Estate of Lockett

ex rel. Lockett v. Fallin, 841 F.3d 1098, 1111 (10th Cir. 2016))).

App’x 628, 630 (10th Cir. 2018) (unpublished) (quoting Awad v. Ziriax, 670 F.3d 1111,

1125 (10th Cir. 2012)). The third and fourth elements “merge” when the government is

the party opposing the preliminary injunction. Nken v. Holder, 556 U.S. 418, 435 (2009).

“As a preliminary injunction is an extraordinary remedy, the right to relief must be clear

and unequivocal.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005)

(citations omitted).4

“‘Every order granting an injunction and every restraining order shall set forth the

reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable

detail, and not by reference to the complaint or other document, the act or acts sought to

be restrained.’” Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 370

(10th Cir. 1996) (alteration in original) (emphasis omitted) (quoting Fed. R. Civ. P. 65).

“[T]rial courts have ‘wide discretion under Rule 65(c) in determining whether to require

security . . . .’” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009)

(quoting Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1206 (10th Cir. 2003)).

4 There are three types of preliminary injunctions that are disfavored: “‘(1)

preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions;

and (3) preliminary injunctions that afford the movant all the relief that it could recover at

the conclusion of a full trial on the merits.’” Id. at 1259 (quoting O Centro Espirita

Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en

banc)). Neither party argues that the State’s requested injunction falls into any of these

categories. But even if it did, the Court is satisfied the State has made a “‘strong

showing’” that the “likelihood-of-success-on-the-merits and the balance-of-harms

factors” weigh in its favor. Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d

792, 797 (10th Cir. 2019) (quoting Fish v. Kobach, 840 F.3d 710, 724 (10th Cir. 2016)).

III. ANALYSIS

A. The State is substantially likely to succeed on the merits.

Starting with the first element, the State argues it is substantially likely to succeed

on the merits of its case because the Final Rule exceeds statutory authority, violates the

Constitution, and is arbitrary and capricious. As further explained below, the Department

disagrees with these arguments.5

Title IX states that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance” unless an enumerated exception applies. 20 U.S.C. § 1681(a). Congress

“empowered” the Department to issue “rules, regulations, or orders of general

applicability which shall be consistent with achievement of the objectives of the

statute . . . .” 20 U.S.C. § 1682.

However, Congress also enacted the Administrative Procedure Act (“APA”) “‘as a

check upon administrators whose zeal might otherwise have carried them to excesses not

contemplated in legislation creating their offices.’” Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244, 2261 (2024) (quoting United States v. Morton Salt Co., 338 U.S. 632,

644 (1950)). The APA “was the culmination of a ‘comprehensive rethinking of the place

of administrative agencies in a regime of separate and divided powers.’” Id. (quoting

5 In its Motion, the State briefly argued that the Final Rule violates the Tenth

Amendment. The Department briefly responded to this argument in its Response. The

Court does not address this claim because even without it, the State has shown it is

substantially likely to succeed on the merits.

Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670–71 (1986)). Under the

APA, courts “shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms of an agency

action.” 5 U.S.C. § 706. It requires courts to “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” “contrary to constitutional right,” “in excess of

statutory jurisdiction,” or “without observance of procedure required by law.” Id.

1. The Department’s interpretation of “sex” exceeds its statutory authority.

The State argues that the Final Rule is contrary to Title IX’s text, and therefore,

the Department’s implementation of the Final Rule exceeds its statutory authority. The

Department argues that the Final Rule’s “specification that Title IX prohibits

discrimination on the basis of gender identity is compelled by the statutory text.” [Doc.

No. 40 at 13].

“[W]hen a particular statute delegates authority to an agency consistent with

constitutional limits, courts must respect the delegation, while ensuring that the agency

acts within it.” Loper, 144 S. Ct. at 2273. When analyzing whether an agency has acted

within its statutory authority, the Court starts with the text of the statute. Id. at 2262

(“The APA, in short, incorporates the traditional understanding of the judicial function,

under which courts must exercise independent judgment in determining the meaning of

statutory provisions.”). “Proper interpretation of a word ‘depends upon reading the whole

statutory text, considering the purpose and context of the statute, and consulting any

precedent[s] or authorities that inform the analysis.’” United States v. Ko, 739 F.3d 558,

560 (10th Cir. 2014) (alteration added) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481,

486 (2006)).

“Sex” is not defined in Title IX. However, “interpretations issued

contemporaneously with the statute at issue, and which have remained consistent over

time, may be especially useful in determining the statute’s meaning.” Loper, 144 S. Ct. at

2262. And, as this Court has previously noted, “at the time Title IX was enacted, ‘sex’

was defined by biology and reproductive functions”—not gender identity or sexual

orientation. Bridge ex rel. Bridge v. Okla. State Dep’t of Educ., --- F. Supp. 3d ----, 2024

WL 150598, at *7 (W.D. Okla. Jan. 12, 2024). Numerous dictionaries published around

the time of Title IX’s passage confirm this conclusion. See infra note 8; cf. In re Mallo,

774 F.3d 1313, 1321 (10th Cir. 2014) (“Dictionary definitions are useful touchstones to

determine the ‘ordinary meaning’ of an undefined statutory term.” (quoting Taniguchi v.

Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012))). In fact, the Department does not

appear to say otherwise. Instead, it maintains that per the amended 34 C.F.R. § 106.10,

(biological) sex discrimination by definition includes discrimination on the basis of

gender identity. It premises this argument on Bostock v. Clayton County, 590 U.S. 644

(2020).

In Bostock, the Supreme Court ruled that an employer violates Title VII of the

Civil Rights Act of 1964 by firing an individual “for being gay or transgender.” Id. at

683. However, it made clear that the opinion did not “sweep beyond Title VII to other

federal or state laws that prohibit sex discrimination.” Id. at 681. Even in the Title VII

context, the Supreme Court did “not purport to address bathrooms, locker rooms, or

anything else of the kind.” Id. The opinion only answered the question of “whether an

employer who fires someone simply for being homosexual or transgender has discharged

or otherwise discriminated against that individual ‘because of such individual’s sex.’” Id.

In light of these disclaimers, the Court is not convinced that Bostock stands for the

proposition that sex discrimination occurs anytime someone is treated differently based

on their gender identity. Yet, that is essentially what the Department argues. “[I]t is

suspect that the Department bases its explanation for changing its interpretation of a

term—again, whose meaning has been unchanged since the statute was enacted—by

relying on reasoning that the highest court said was inapplicable.” Tennessee v. Cardona,

--- F. Supp. 3d ----, 2024 WL 3019146, at *33 (E.D. Ky. June 17, 2024). Plus, if

Bostock’s rationale does not even apply to bathrooms or locker rooms in the Title VII

context, why would it apply to bathrooms and locker rooms in the Title IX context? The

Department does not offer an adequate explanation to this question.

Additionally, such an interpretation would be at odds with Title IX’s purpose.

Leading up to Title IX’s passage, all relevant congressional statements, hearings, and

reports focused on discrimination women faced in education. See 116 Cong. Rec. 6398,

6400 (1970) (Rep. Martha Griffiths) (“It is shocking and outrageous that universities and

colleges, using Federal moneys, are allowed to continue treating women as second-class

citizens, while the Government hypocritically closes its eyes.”); 117 Cong. Rec. 22735,

22735 (1971) (Sen. Birch Bayh) (“To my mind our greatest legislative failure relates to

our continued refusal to recognize and take steps to eradicate the pervasive, divisive, and

unwarranted discrimination against a majority of our citizens, the women of this

country.”); 118 Cong. Rec. 5806, 5808 (1972) (Sen. Birch Bayh) (“While the impact of

this [proposed legislation] would be far-reaching, it is not a panacea. It is, however, an

important first step in the effort to provide for the women of America something that is

rightfully theirs—an equal chance to attend the schools of their choice, to develop the

skills they want, and to apply those skills with the knowledge that they will have a fair

chance to secure the jobs of their choice with equal pay for equal work.”).

This purpose is confirmed by Title IX’s text. Yet the Final Rule elevates gender

identity and its accompanying protections above that of biological sex—i.e., women.

Such a contradiction of Title IX’s text and an erosion of its purpose cannot be permitted

absent congressional action.6 Of course, the Court understands that the Department only

seeks to enact regulations that the executive branch believes are beneficial to the nation.

However, “[t]he hydraulic pressure inherent within each of the separate Branches to

exceed the outer limits of its power, even to accomplish desirable objectives, must be

resisted.” Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983).

6 In the past, when courts have determined that a statute’s text does not protect

certain groups of people, Congress has stepped in and passed legislation so the people’s

will is effectuated. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 88–89 (1983) (“[T]his

Court ruled that discrimination based on pregnancy was not sex discrimination under

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et

seq. (1976 ed.). General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d

343 (1976). Congress overcame the Gilbert ruling by enacting § 1 of the Pregnancy

Discrimination Act of 1978, 92 Stat. 2076, 42 U.S.C. § 2000e(k) (1976 ed., Supp. V),

which added subsection (k) to § 701 of the Civil Rights Act of 1964.”) (footnotes

omitted). That is the proper mechanism for expanding statutory protections. It is not by

enacting far-reaching regulations or turning to the judiciary for expansion.

Having considered the statute’s unambiguous text, purpose, and other subsequent

binding precedent, such as Bostock, the Court concludes the State is likely to succeed on

its claim that the Department exceeded its statutory authority under Title IX by

implementing a regulation that expands sex discrimination to include discrimination on

the basis of gender identity.7

2. Even if the Department did not clearly exceed its authority, the major questions

doctrine counsels against adopting the Department’s interpretation and expansion

of Title IX.

The State argues that by enacting the Final Rule, the Department seeks to decide a

major question that Congress did not clearly authorize it to decide. The Department

argues that the major questions doctrine is inapplicable because the text of the statute

controls, and the Final Rule is consistent with Title IX’s text.

As stated previously, Title IX’s unambiguous and clear text shows the State is

substantially likely to succeed on the merits of its case. However, if the statute’s text

contained ambiguity regarding whether discrimination on the basis of sex also included

discrimination based on “sex stereotypes, sex characteristics, pregnancy or related

conditions, sexual orientation, and gender identity,” the major questions doctrine would

counsel against such an interpretation. “[I]n certain extraordinary cases, both separation

of powers principles and a practical understanding of legislative intent make [the

7 Grounding much of its analysis in Bostock, the Tenth Circuit recently decided

that discrimination based on transgender status is discrimination on the basis of sex that

implicates the Equal Protection clause. Fowler v. Stitt, 104 F.4th 770, 790 (10th Cir.

2024). But nothing in Fowler suggests it applies outside the Equal Protection context.

And for the same reasons as stated above, absent a mandate to the contrary, the Court will

not apply Fowler’s analysis to Title IX—a statutory framework to which it is ill suited.

Supreme Court] ‘reluctant to read into ambiguous statutory text’ the delegation claimed

to be lurking there.” West Virginia v. EPA, 597 U.S. 697, 723 (2022) (quoting Util. Air

Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Thus, the “[m]ajor [q]uestions [d]octrine

applies where ‘an agency claims to discover in a long-extant statute an unheralded power

to regulate a significant portion of the American economy’ or make ‘decisions of vast

economic and political significance.’” Bradford v. U.S. Dep’t of Lab., 101 F.4th 707, 725

(10th Cir. 2024) (quotations omitted) (quoting Util. Air Regul. Grp., 573 U.S. at 324). In

such situations, the doctrine requires “something more than a merely plausible textual

basis for the agency action.” West Virginia, 597 U.S. at 723. “The agency instead must

point to ‘clear congressional authorization’ for the power it claims.” Id. (quoting Util. Air

Regul. Grp., 573 U.S. at 324).

The Department’s claim that it can expand “sex” in Title IX to include “gender

identity” despite several decades of “sex” solely meaning the biological differences

between men and women falls flat. See Frontiero v. Richardson, 411 U.S. 677, 686

(1973) (plurality opinion) (explaining that “sex, like race and national origin, is an

immutable characteristic”); United States v. Virginia, 518 U.S. 515, 533 (1996) (using the

term “sex classifications” when discussing laws and policies that treat individuals based

on whether they are biological “women” or “men”); see also id. (discussing the

“[i]nherent differences between men and women” without referring to gender identity).

The debate regarding the relationship between sex and gender identity is a motivating

factor behind countless lawsuits, legislation, and political debates. The enactment of the

Final Rule is the essence of an agency claiming to discover, in a statute that has been

enacted for over fifty years, a previously unknown power to decide how broadly “sex” is

defined and applied—i.e., a decision of vast political significance. So, even if there was a

plausible textual basis for the Department’s interpretation of Title IX, the Department

would need to point to clear congressional authorization for its ability to redefine sex in a

way that includes or implicates gender identity. The Department has not done so, and

Congress has not clearly given the Department authority to redefine sex in a way that

would be inconsistent with other portions of the statute. Therefore, the Court determines

the State is substantially likely to succeed on its claim that the major questions doctrine

prohibits the Department from enforcing the Final Rule.

3. The State is substantially likely to succeed on its constitutional claims.

a. The Final Rule likely violates the First Amendment.

The State argues that the Final Rule’s new harassment provisions violate the First

Amendment and contradict Davis ex rel. LaShonda D. v. Monroe County Board of

Education, 526 U.S. 629, 640 (1999). The Department argues that the Final Rule has no

such problems because it explicitly provides that “‘nothing in the Title IX regulations

requires a recipient to restrict any rights that would otherwise be protected from

government action by the First Amendment.’” [Doc. No. 40 at 25] (quoting 89 Fed. Reg.

at 33503). Additionally, it notes that the standard set forth in the Final Rule does not need

to comply with Davis because “Davis addressed the standard required in a private action

for damages,” not administrative enforcement. Id. at 22.

The First Amendment states, “Congress shall make no law . . . abridging the

freedom of speech . . . .” U.S. Const. amend. I. “First Amendment rights, applied in light

of the special characteristics of the school environment, are available to teachers and

students.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). In

Davis, the Supreme Court held that “in the context of student-on-student harassment,

damages are available only where the behavior is so severe, pervasive, and objectively

offensive that it denies its victims the equal access to education that Title IX is designed

to protect.” 526 U.S. at 652. This standard for harassment accounted for both a school’s

need to exercise “disciplinary authority” and limit exposure “to constitutional or statutory

claims.” Id. at 649. The Supreme Court highlighted, however, that, Title IX’s “plain

language confines the scope of prohibited conduct based on the recipient’s degree of

control over the harasser and the environment in which the harassment occurs.” Id. at

644. “Moreover, because the harassment must occur ‘under’ ‘the operations of’ a funding

recipient, see 20 U.S.C. § 1681(a); § 1687 (defining ‘program or activity’), the

harassment must take place in a context subject to the school district’s control . . . .” Id. at

645.

The amended 34 C.F.R. § 106.2 has significantly strayed from this standard. It has

changed the “severe and pervasive” standard to a “severe or pervasive” standard, altered

the “denies” equal access condition to a “limits or denies” equal access condition, and

added a subjective component to the “objectively offensive” requirement. The Final Rule

does not define what “objectively offensive” means, but given the regulation’s text, it is

reasonable to assume that refusal to affirm someone’s gender identity would fall into this

category. Perhaps most notably, it largely expands the Department’s reach outside the

classroom and off campus. For example, the Final Rule says

a recipient’s obligation is to address all forms of sex discrimination,

including sex-based harassment that occurs within the recipient’s education

program or activity, whether the conduct takes place online, in person, or

both. Online harassment can include, but is not limited to, unwelcome

conduct on social media platforms such as sex-based derogatory name-

calling, the nonconsensual distribution of intimate images (including

authentic images and images that have been altered or generated by

artificial intelligence (AI) technologies), cyberstalking, sending sex-based

pictures or cartoons, and other sex-based conduct that, based on the totality

of the circumstances, is subjectively and objectively offensive and so

severe or pervasive that it limits or denies a person’s ability to participate in

or benefit from the recipient’s education program or activity.

89 Fed. Reg. 33474, 33515.

Regardless, the Department argues the Davis standard is not binding because a suit

for damages is different than administrative enforcement. In support, it highlights that

prior regulations imposed a standard similar to that which is found in the Final Rule. See

1997 Sexual Harassment Guidance, 62 Fed. Reg. 12034, 12040 (condemning harassment

that was “sufficiently severe, persistent, or pervasive to create a hostile environment”).

But this argument minimizes the Final Rule’s other changes that undeniably further

broaden the “severe or pervasive” standard. When the “severe or pervasive” standard is

applied alongside the expanded definition of sex discrimination in § 106.10 and the added

condition that a recipient must address a sex-based hostile environment even when the

alleged conduct occurred “outside the United States,” the likelihood of a constitutional

violation is apparent. 89 Fed. Reg. 33530. Even the Davis Court explained that its

opinion applying the severe and pervasive standard should “not mislead courts to impose

more sweeping liability than we read Title IX to require.” 526 U.S. at 652 (emphasis

added). And changing “and” to “or” only makes Title IX’s liability more sweeping.

Whether conduct or speech is considered harassment under the Final Rule is

dependent on broad statements and vague terminology that the Department has elected

not to define. Additionally, the new harassment regulations in the amended § 106.2 do

not comport with the standard set out in Davis. This, along with the above mentioned

First Amendment concerns, leads the Court to conclude that these considerations weigh

in favor of the State with respect to its substantial likelihood of success on the merits.

b. The Final Rule’s conditions likely violate the Spending Clause.

The State argues that because Congress did not unambiguously state Title IX’s

prohibition against sex discrimination includes discrimination based on gender identity,

the Final Rule’s conditions are in violation of the Spending Clause. The Department

continues to rely on Bostock and argues that Ҥ 106.10 merely sets forth the meaning of

Title IX’s unambiguous statutory text.” [Doc. No. 40 at 30].

“The Spending Clause provides that ‘[t]he Congress shall have Power To . . .

provide for the common Defence and general Welfare of the United States.’” Pittsburg

Cnty. Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 716 (10th Cir. 2004)

(alterations in original) (quoting U.S. Const. art. I, § 8, cl. 1). Title IX is “legislation

enacted pursuant to Congress’ authority under the Spending Clause.” Davis, 526 U.S. at

640. This type of legislation is “‘much in the nature of a contract: in return for federal

funds, the States agree to comply with federally imposed conditions.’” Id. (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). “[B]ut when

Congress attaches conditions to a State’s acceptance of federal funds, the conditions must

be set out ‘unambiguously . . . .’” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548

U.S. 291, 296 (2006) (quoting Pennhurst, 451 U.S. at 17).

Congress chose to use the term “sex” in Title IX. “Sex” unambiguously means the

biological differences between male and female. In the context of Title IX, the concepts

of sex and gender identity are distinct and independent of one another. Thus, Title IX’s

text does not give the State “clear notice” that its acceptance of funds is conditioned on

its treatment of an individual’s gender identity. See id. at 300. Without clear notice

provided by Congress that “on the basis of sex” has been expanded to include gender

identity under Title IX, the Department cannot premise the receipt of federal funds off

compliance with the Final Rule. Therefore, this element weighs in favor of the State with

respect to its substantial likelihood of success on the merits.

4. The State is substantially likely to succeed in showing the Department acted in an

arbitrary and capricious manner in passing the Final Rule.

The State argues that the Department acted in an arbitrary and capricious manner

because (1) it failed to offer a reasoned explanation for the Final Rule’s departure from

the historic understanding of “sex” and (2) the Final Rule is unexplainably internally

inconsistent. The Department contends the Final Rule is consistent with Supreme Court

precedent and that it “is not inconsistent for the Final Rule to distinguish sex separation

expressly permitted by Congress, listed in § 106.31(a)(2), from sex separation permitted

by regulation in other contexts.” [Doc. No. 40 at 27].

According to the Tenth Circuit, an agency’s decision is arbitrary and capricious

if the agency (1) “entirely failed to consider an important aspect of the

problem,” (2) “offered an explanation for its decision that runs counter to

the evidence before the agency, or is so implausible that it could not be

ascribed to a difference in view or the product of agency expertise,” (3)

“failed to base its decision on consideration of the relevant factors,” or (4)

made “a clear error of judgment.”

WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1233 (10th Cir.

2017) (quoting New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683,

704 (10th Cir. 2009)). “The duty of a court reviewing agency action under the ‘arbitrary

or capricious’ standard is to ascertain whether the agency examined the relevant data and

articulated a rational connection between the facts found and the decision made.”

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). “[T]he

arbitrary and capricious standard focuses on the rationality of an agency’s decision

making process rather than on the rationality of the actual decision . . . .” Colo. Wild v.

U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006).

The Final Rule’s understanding of what “sex” means departs from the definition

this term had for decades.8 Expanding the definition of such a crucial term creates

unexplained inconsistency with Title IX’s text, purpose, and former Department

8 In 1961, the Oxford English Dictionary defined sex as “[t]he sum of those

differences in the structure and function of the reproductive organs on the ground of

which beings are distinguished as male and female, and of the other physiological

differences consequent on these.” The Oxford English Dictionary 578 (1961). In 1970,

the American College Dictionary defined sex as “the sum of the anatomical and

physiological differences with reference to which the male and the female are

distinguished.” The American College Dictionary 1109 (1970). In 1979, Webster defined

it as “the sum of the structural, functional, and behavioral characteristics of living beings

that subserve reproduction by two interacting parents and that distinguish males and

females.” Webster’s New Collegiate Dictionary 1054 (1979). In 1996, the Supreme Court

recognized that the “[p]hysical differences between men and women . . . are enduring”

and the “‘two sexes are not fungible . . . .’” United States v. Virginia, 518 U.S. 515, 533

(1996) (quoting Ballard v. United States, 329 U.S. 187, 193 (1946)).

interpretations. See Dep’t of Just. & Dep’t of Educ., Dear Colleague Letter, Feb. 22,

2017, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf

(explaining that the Department is rescinding guidance documents “requir[ing] access to

sex-segregated facilities based on gender identity” because those guidance documents did

not “contain extensive legal analysis or explain how the position is consistent with the

express language of Title IX”). This is “a reason for holding an interpretation to be an

arbitrary and capricious change from agency practice under the [APA].” Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). However, the

Department says there was not a “‘long-standing construction’ of the term ‘sex’ in Title

IX to mean ‘biological sex.’” 87 Fed. Reg. 41390, 41537. Although it has previously

“articulated a narrower interpretation of the scope of Title IX’s prohibition on sex

discrimination,” id. at 41531 (citing 2001 Revised Sexual Harassment Guidance at 3;

2010 Dear Colleague Letter on Harassment and Bullying at 8; Preamble to the 2020

Amendments, 85 Fed. Reg. 30178), the Department “now believes that its prior position

(i.e., that Title IX’s prohibition on sex discrimination does not encompass discrimination

based on sexual orientation and gender identity) is at odds with Title IX’s text and

purpose and the reasoning of the Bostock Court.” 87 Fed. Reg. at 41531.

“Disagreement with its own past interpretation constitutes a concession that a

longstanding interpretation indeed has existed.” Tennessee v. Cardona, --- F. Supp.

3d ----, 2024 WL 3019146, at *32 (E.D. Ky. June 17, 2024), appeal docketed, No. 24-

5588 (6th Cir. June 26, 2024). And the primary reason it gives for changing its

interpretation is Bostock. But for the reasons previously explained, basing the Final Rule

off Bostock does not reflect reasoned decision making. Bostock was never intended to

have a sweeping impact on Title VII, let alone Title IX. “Ultimately, there is little reason

in the Department’s purportedly ‘reasoned explanation’ for departing from its

longstanding interpretation of sex as a binary construct because Bostock did not expand

the meaning of ‘sex’ within Title IX.” Id. at *33.

Additionally, the gender identity mandate is inexplicably logically inconsistent

with several provisions of Title IX. The Department acknowledges that Title IX “created

exceptions to that general nondiscrimination mandate in 20 U.S.C. 1681(a)(1)–(9), and

also carved out from its general nondiscrimination mandate the maintenance of sex-

separate living facilities in 20 U.S.C. 1686.” 89 Fed. Reg. 33474, 33818. And yet, the

amended § 106.31 says recipients cannot discriminate on this basis when it comes to

locker rooms or bathrooms if such action subjects “a person to more than de minimis

harm.” Id. at 33887. In application, this means recipients can have male and female

dormitories and assign students to particular dorms based on their biological sex.

However, for bathrooms and locker rooms, sex-separate facilities are only allowed to the

extent they do not prevent individuals from using the bathroom or locker room consistent

with their gender identities. So, if a biological male identifies as a female, the biological

male can be required to sleep in the boys dorm but must be allowed to use the girls locker

room. This approach undercuts Title IX’s purpose, epitomizes a clear error in judgment,

and entirely fails to consider important aspects of the problem the Department sought to

resolve.

Therefore, the Court holds that the State is substantially likely to succeed in

showing that the Department acted in an arbitrary and capricious manner.

5. The Court does not consider the parties’ arguments regarding athletics.

To the extent the parties raise arguments regarding the Final Rule’s impact on

athletics, the Court does not consider these. The Final Rule explicitly “permits different

treatment or separation on the basis of sex” in accordance with 34 C.F.R. § 106.41, which

is the current regulation that addresses athletics.

The Court notes that the Department has issued a Notice of Proposed Rulemaking

titled, Nondiscrimination on the Basis of Sex in Education Programs or Activities

Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and

Female Athletic Teams, 88 Fed. Reg. 22860 (Apr. 13, 2023). Were this regulation to take

effect, it would significantly change the legal landscape surrounding athletics.

However, as it stands, this regulation is not a final agency action. See Farrell-

Cooper Mining Co. v. U.S. Dep’t of Interior, 864 F.3d 1105, 1113 (10th Cir. 2017) (“As a

general matter, two conditions must be satisfied for agency action to be final: First, the

action must mark the consummation of the agency’s decisionmaking process[ ]—it must

not be of a merely tentative or interlocutory nature. And second, the action must be one

by which rights or obligations have been determined, or from which legal consequences

will flow.” (alteration in original) (quoting Bennett v. Spear, 520 U.S. 154, 177–78

(1997))). Thus, the Court does not have jurisdiction to consider this claim. Cherry v. U.S.

Dep’t of Agr., 13 F. App’x 886, 890 (10th Cir. 2001) (unpublished) (“[T]he finality of an

agency action is jurisdictional . . . .”).

B. The State will suffer irreparable harm if the injunction is denied.

Turning to the second element, the State argues that if the Final Rule is allowed to

take effect, it will suffer irreparable harm because it will be “unable to enforce its own

laws without coming into conflict with the Final Rule.” [Doc. No. 21 at 35]. The State

also contends it will suffer from nonrecoverable compliance costs. The Department

argues that the State’s claim of unrecoverable compliance costs is speculative and that,

“[r]egardless of whether the Rule preempts any state’s laws, if the Department is

prevented from administering the Rule, the Department, not Plaintiff, faces significant

irreparable harm.” [Doc. No. 40 at 33].

“To constitute irreparable harm, an injury must be certain, great, actual ‘and not

theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)

(quoting Wis. Gas Co. v. Fed. Energy Regul. Comm’n, 758 F.2d 669, 674 (D.C. Cir.

1985)). “If the harm is not ‘likely to occur before the district court rules on the merits,’

there is no need for preliminary injunctive relief.” State v. U.S. Env’t Prot. Agency, 989

F.3d 874, 884 (10th Cir. 2021) (quoting New Mexico Dep’t of Game & Fish v. U.S. Dep’t

of the Interior, 854 F.3d 1236, 1250 (10th Cir. 2017)).

“‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by

representatives of its people, it suffers a form of irreparable injury.’” New Mexico Dep’t

of Game & Fish, 854 F.3d at 1254 (quoting Maryland v. King, 567 U.S. 1301, 1303

(2012)). “The loss of First Amendment freedoms, for even minimal periods of time,

unquestioningly constitutes irreparable injury.” Schrier v. Univ. of Colo., 427 F.3d 1253,

1266 (10th Cir. 2005) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality

opinion)). And “[i]mposition of monetary damages that cannot later be recovered for

reasons such as sovereign immunity constitutes irreparable injury.” Chamber of Com. of

U.S. v. Edmondson, 594 F.3d 742, 770–71 (10th Cir. 2010).

If the State is required to follow the Final Rule, it will be enjoined from

effectuating laws like Okla. Stat. tit. 70, § 1-125—the statute that requires individuals to

use the restrooms in public schools that match their biological sex. And as previously

analyzed, the Final Rule is likely to violate students’ and teachers’ First Amendment

rights. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (“Our frequently

reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that

irreparable injury is likely in the absence of an injunction.” (emphasis omitted)). Lastly,

the State will incur compliance costs by implementing the Final Rule’s provisions, and

the Court is unaware of any mechanism through which the State could recover these

compliance costs should the Final Rule later be permanently enjoined, and the

Department does not offer any. For these reasons, the Court concludes that this element

weighs in favor of the State.

C. The State’s threatened injury outweighs the injury the Department would

suffer, and a preliminary injunction is in the public interest.

Addressing the third and fourth elements which are merged, the State argues that

the injuries it faces outweigh the harm to the Department. It maintains that enforcing an

unlawful regulation is not in the public interest. The Department argues that if injunctive

relief is granted, the federal government will be unable to prevent sex discrimination in

education environments, which would have a negative effect on the public interest.

When evaluating the balance of equities, the Court “do[es] not reject out of hand

that the administrative burdens of compliance” can constitute “a real harm.” Fish v.

Kobach, 840 F.3d 710, 754 (10th Cir. 2016). Plus, when a law, or in this case, a

regulation is “likely unconstitutional” the interest of letting it take effect does not

outweigh having “constitutional rights protected.” Awad v. Ziriax, 670 F.3d 1111, 1131

(10th Cir. 2012). In the statutory context, “our ‘democratically elected representatives . . .

are in a better position than this Court to determine the public interest[;] . . . [t]he courts’

peculiar function is to say what the law is, not to second-guess democratic determinations

of the public interest.’” Fish, 840 F.3d at 755 (alterations in original) (quoting Heideman

v. S. Salt Lake City, 348 F.3d 1182, 1191 (10th Cir. 2003)).

The equities do not favor the Department and the public interest is not served

when the law is misapplied or constitutional rights are violated. Since the current

regulations have been in effect for decades, there is little harm in maintaining the status

quo through the pendency of this suit. Additionally, recipients have only been given three

months to comply with all the Final Rule’s changes. Federal funds that go to school

programs, salaries, etc. are on the line. For these reasons, neither the equities nor the

public interest favors the Department.

D. The Final Rule is preliminarily enjoined in its entirety.

Finally, the Department argues that if the Court grants the State relief, it should

limit the injunction to apply only to § 106.31(a)(2) and § 106.2’s definition of “hostile

environment harassment.” The Department contends that since the Final Rule is

severable, “[t]he Court should not enjoin § 106.10, which when properly understood

could not cause the harm that [the State] alleges.” [Doc. No. 40 at 37]. The State argues

the Court should preliminarily enjoin the entire Final Rule from going into effect because

it has shown a substantial likelihood of success on the merits of its claim pertaining to

§ 106.10, and “the new definition of sex discrimination, appears to touch every

substantive provision of the Rule.” [Doc. No. 43 at 12 (alteration omitted)].

Based on the above analysis regarding the amended §§ 106.10, 106.2’s definition

of hostile environment harassment, and 106.31(a), the Court is satisfied that the State has

met its burden of showing these portions of the Final Rule should be preliminarily

enjoined from taking effect. The issue then becomes whether the Court should sever these

provisions from the rest of the Final Rule or preliminarily enjoin the Final Rule in its

entirety. See 89 Fed. Reg. 33474, 33848 (“The Department also confirms that each of the

provisions in the final regulations is intended to operate independently of each other and

that the potential invalidity of one provision should not affect the other provisions.”).

“[T]he problem is that these provisions, particularly the new definition of sex

discrimination, appear to touch every substantive provision of the [Final Rule].”

Tennessee v. Cardona, No. 24-5588, 2024 WL 3453880, at *3 (6th Cir. July 17, 2024).

For example, §§ 106.8(f), 106.2, 106.8, 106.11, 106.40, 106.44, 106.45, 106.46,

and 106.71 all implicate the new definition of sex discrimination. “It is hard to see how

all of the schools covered by Title IX could comply with this wide swath of new

obligations if the Rule’s definition of sex discrimination remains enjoined.” Id. at *4.

Plus, the Department does not explain how the Final Rule would even operate without

§ 106.10. Lastly, because of the State’s showing that the Department acted in an arbitrary

and capricious manner in its enactment of the Final Rule, the Court determines

preliminarily enjoining the Final Rule in its entirety is appropriate.

IV. CONCLUSION

“The growth of the Executive Branch, which now wields vast power and touches

almost every aspect of daily life, heightens the concern that it may slip from the

Executive’s control, and thus from that of the people.” Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477, 499 (2010). Thus, when the executive branch oversteps its

constitutional or statutory bounds via agency action, the judiciary must fulfill its role and

ensure the “carefully defined limits” on each branches’ power are not “eroded.” Immigr.

& Naturalization Serv. v. Chadha, 462 U.S. 919, 957–58 (1983).

The Court determines, based on its analysis above, that the Motion for Preliminary

Injunction [Doc. No. 21] filed by the State of Oklahoma should be GRANTED. The

United States Department of Education and Miguel Cardona, Secretary of the U.S.

Department of Education, along with their secretaries, directors, administrators, and

employees, are preliminarily ENJOINED and RESTRAINED from implementing,

enacting, enforcing, or taking any action in any manner to enforce the Final Rule,

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving

Federal Financial Assistance, 89 Fed. Reg. 33474 (Apr. 29, 2024), which is scheduled to

take effect on August 1, 2024. The preliminary injunction is limited to the State of

Oklahoma. The Court does not require a security.’

IT IS SO ORDERED this 31st day of July 2024.

ei W. DISHMAN

UNITED STATES DISTRICT JUDGE

” Neither party raises nor briefs the necessity of a security under Rule 65(c). In

light of the relevant facts and the State’s substantial likelihood of success on the merits,

the Court concludes a security is not necessary.

29