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 cover a range of topics, including the rights of LGBTQ+ students, sexual harassment victims, and pregnant and postpartum students. Protections for this last group include 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, the Department of Education, now under new leadership, indicated it likely will not continue to defend the regulation by appealing the court’s decision.
On February 26, 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. In that motion, A Better Balance asked to join the lawsuit as a defendant so it can appeal the district court’s decision and try to revive the portions of the regulation related to pregnancy. That motion is currently pending before the district court.
Core legal question: The states that brought this lawsuit have not argued 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 will argue that the challenged portions of the regulations are severable from the pregnancy-permitted provisions, and so the latter should be permitted to go into effect.