Tennessee v. McMahon
What’s at stake:
Protections for pregnant and postpartum students
Summary:
In 2024, the U.S. Department of Education published new Title IX regulations. The regulations covered a range of topics, including the rights of LGBTQ+ students, sexual harassment victims, and pregnant and postpartum students. Protections for this last group included explicit rights to lactation breaks in clean spaces and other “reasonable modifications,” such as excused absences to attend prenatal appointments, adjusted deadlines and exam dates, and bigger desks for growing bellies.
In January 2025, in a case brought in the Eastern District of Kentucky by Tennessee and other states, a judge struck down the entire regulation nationwide. The judge did so even though the states that brought the suit had only challenged three provisions related to LGBTQ+ students’ rights. After the court’s ruling and after the change in the presidential administration the Department of Education, decided it would not continue to defend the regulation by appealing the court’s decision.
In February 2025, Public Justice and its co-counsel filed a motion to intervene on behalf of A Better Balance, a nonprofit organization that provides legal services for pregnant and postpartum students. A Better Balance asked to join the lawsuit as a defendant so it could appeal the district court’s decision and try to revive the portions of the regulation related to pregnancy. A Better Balance argued that the portions of the regulations that the States challenged were severable from the pregnancy-related provision, and so the latter should be permitted to go into effect.
The district court denied A Better Balance’s motion, holding it lacked standing to intervene because it was not sufficiently injured by the court striking down the regulations. A Better Balance noticed an appeal in the Sixth Circuit. But before it could submit briefing, the Fifth Circuit issued an en banc decision making it extraordinarily difficult for legal services organizations like A Better Balance to show organizational standing. The Fifth Circuit decision impacted A Better Balance’s appeals in a related case in the Fifth Circuit, Carroll Independent School District v. Department of Education, as well as in this case, in the Sixth Circuit. As a result, Public Justice and A Better Balance made the difficult decision to dismiss the appeals in both cases.
Core legal question:
The states that brought this lawsuit did not argue that the portion of the regulation that protects pregnant and postpartum students, 34 C.F.R. § 106.40, is unlawful. Rather, they argued — and the district court held — that because three other parts of the regulation are unlawful, the entire regulation should be struck down. If permitted to appeal, A Better Balance would have argued that the challenged portions of the regulations are severable from the pregnancy-related provisions, and so the latter should be permitted to go into effect.