Federal Court Grants Preliminary Injunction Halting Department of Education Guidance Prohibiting Discrimination Based on Gender Identity or Sexual Orientation in Twenty States

The State of Tennessee v. United States Department of Education, Case No. 3:21-cv-308, 2022 WL 2791450 (E.D. Tenn., July 15, 2022).

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting

Twenty states sued to halt enforcement of the Department of Education’s (ED) guidance implementing Executive Order No. 13988, titled “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”^[1] The Executive Order extended the holding of Bostock v. Clayton County, a Title VII case, to Title IX. Reasoning that “laws that prohibit sex discrimination… prohibit discrimination on the basis of gender identity or sexual orientation,” the Executive Order directed federal agencies to implement anti-discrimination statutes consistent with the Biden Administration’s interpretation.^[2] The ED published a Notice of Interpretation and issued a Dear Educator Letter as a result.

PROCEDURAL HISTORY

Plaintiff States (Plaintiffs) brought suit to prevent ED’s enforcement of guidance documents and sought a preliminary injunction asking the court to act immediately. The twenty states challenged the legality of ED’s guidance documents, raising concerns about their constitutionality, as well as whether the federal government followed the procedural requirements of the Administrative Procedure Act (APA) when issuing the guidance. 

Courts will grant preliminary injunctions when:

1. The moving party shows a likelihood of success on the merits
2. The moving party will be irreparably injured without an injunction
3. An injunction will not harm other parties to the litigation
4. An injunction is in the public interest

FINDINGS AND SIGNIFICANT ISSUES

First, the court determined that Plaintiffs are likely to succeed on the merits of their claim because, in the court’s view, ED did not comply with the APA’s notice and comment process before issuing its guidance.

Regarding the second consideration, the court summarily held that Plaintiffs would suffer irreparable harm if they were unable to enforce their own state laws, which may permit some forms of discrimination on the basis of sexual orientation and/or gender identity.

Turning to the third factor, in a brief and logically questionable analysis, the court argued that because Plaintiffs are likely to succeed on the merits, ED does not have a legitimate interest in enforcing its own guidance documents. Therefore, ED would not suffer harm. The court cites no previous court cases as support for this legal theory, which seems to conflate the first and third factors.

Lastly, the court engaged in similar specious reasoning when examining the public interest considerations, holding that “[b]ecause there are questions as to [ED’s] compliance with the APA, the public would benefit from a preliminary injunction.”^[3] If you are asking why the courts have a four-part test if the first, third, and fourth factors are not separate analyses, you likely are not alone.

Notably, the court did not weigh the harm that could come to any individuals (such as LGBTQIA+ students or employees) in its public interest considerations, choosing to only balance the public’s interest in states enforcing their laws versus the public’s interest in agencies enforcing regulations.

The court granted the preliminary injunction. ATIXA and TNG will continue to track this case closely as the litigation proceeds.

KEY TAKEWAYS & RECOMMENDATIONS

• The injunction only applies to the states involved in the case. See Footnote 1 for the full list.
• The Notice of Proposed Rulemaking (NPRM) announced by ED in June 2022 makes clear that the Department of Education intends for its forthcoming Title IX regulations to cover sexual orientation and gender identity. When ED implements the new Title IX regulations, they will have “cured” the concerns that this court has with the Department’s actions under the laws that govern how federal agencies issue guidance. In other words, this injunction is likely only a temporary victory for the states who are party to the lawsuit. However, until ED completes the rulemaking process, schools in those 20 states cannot rely on ED’s Office for Civil Rights (OCR) to enforce LGBTQIA+ equality broadly in schools and educational institutions. They should follow state law or prepare to challenge the state law in court.
  • Note that despite this decision, it is likely that Title IX still protects against sexual orientation and gender-based discrimination that relies on sex stereotyping, based on existing law.
• Once ED’s regulations become law, the effect will be to pre-empt state laws that do not protect on the basis of gender identity and sexual orientation, but that is unlikely to happen until 2023. Once ED’s 2023 Title IX regulations take effect, it is likely these states will sue again, to try to block the regulations. This issue may eventually make its way to the Supreme Court. In the past, the Court passed on the opportunity to address this question when it declined to take the G.G. case noted in footnote 4, thereby leaving bathroom-related access protections for trans students in place in the Fourth Circuit.
• Your school or district need not rely on federal Title IX guidance alone to recognize that your community protects individuals from discrimination on the basis of sex or gender. Other laws or policies might apply:
  • Federal case law in your jurisdiction, especially as it relates to facility access^[4]
  • State law or local ordinance
  • District or institutional policy
  • If there is no district or institutional policy in place, consider developing a policy.
  • Consult with legal counsel about other considerations in your state, including whether your legislature is taking action to expand or roll back LGBTQIA2SP+ rights.
• For schools or institutions in the 20 states in this suit, this court’s decision does not necessarily mandate changes to your policies and procedures. The decision only means that OCR cannot enforce protections for sexual orientation and gender identity under Title IX. Schools still have the choice to provide those protections unless state law prohibits doing so. ATIXA recommends you develop and/or maintain policies and procedures protecting sexual orientation and gender identity if state law and school culture permit you to do so.
• Religiously affiliated schools subject to Title IX have the right to claim a religious exemption that will permit them to engage in discrimination on the basis of sexual orientation and gender identity. The right to that exemption is expected to be included in the 2023 regulations.

Read more Keeping Up With the Courts blogs here.

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^[1] Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

^[2] Executive Order 13988, par 2.

^[3] Tennessee v. Department of Education, at 46.

^[4] G.G. v. Gloucester Cty. Sch. Board, 972 F.3d 586 (4^th Cir. 2020) (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia); Whitaker v. Kenosha Unified Sch. Dist., No. 1, 858 F.3d 1034 (7^th Cir. 2017) (covering Illinois, Indiana, and Wisconsin); Doe v. Boyerstown Area Sch. Dist., 897 F.3d 518 (3^rd Cir. 2018) (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands); Adams v. Sch. Board of St. Johns County, 3 F.4^th 1299 (11^th Cir. 2021) (covering Alabama, Florida, and Georgia).