A Tennessee judge on Friday issued a temporary block on the Education Department’s Title IX guidance that prohibits discrimination based on gender identity and sexual orientation.
The temporary injunction from by Judge Charles Atchley focused on guidance issued by the Education Department in June 2021, which came after the Biden administration put out an executive order regarding how federal agencies should interpret what constitutes sex discrimination in light of Bostock v. Clayton County, a Supreme Court case that determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The plaintiffs argue that the Education Department guidance following the Bostock decision should be more of a suggestion rather than enforced by the department as a statute, since the protections have not yet been codified into law under Title IX.
The 20 states listed as plaintiffs on the injunction, including Alabama, Ohio and West Virginia, to name a few, argued that the department’s guidance on Title IX interfered with their ability to enforce laws that prohibit transgender students from using bathrooms and locker rooms or playing on sports teams that align with their gender identity.
The plaintiffs argue that the department’s Title IX guidance “directly interferes with and threatens plaintiff states’ ability to continue enforcing their state laws” and that the guidance “puts substantial pressure on [the states] to change state laws” or risk losing “substantial” federal funding.
The injunction was first filed in September 2021 and was led by Tennessee attorney general Herbert Slatery, who was joined by a coalition of Republican attorneys general. The Education Department, listed as a defendant in the case, attempted to dismiss the case but was denied.
The plaintiffs argue that the guidance violates the 10th Amendment as well as the Administrative Procedure Act, both which protect the individual right for states to create and enforce laws. They argue that in order for the Education Department to issue new Title IX rules, it must do so through a formal rule-making process where stakeholders have a chance to comment, rather than through guidance.
Joe Cohn, policy director of the Foundation for Individual Rights and Expression, said, “The preliminary injunction is another reminder to the Department of Education that it cannot pretend a ‘guidance document’ is merely advisory while simultaneously threatening to enforce its terms.”
Protections for LGBTQ students under Title IX have historically been dismantled by Republican federal leadership. In 2017, the Trump administration rescinded protection for transgender students that was first issued by the Obama administration.
“The bottom line is regardless of who this directly impacts, it points to the really shaky ground that LGBTQ students’ rights stand on,” said Alyssa-Rae McGinn, vice president of investigations at Dan Schorr LLC, a company that advises colleges on Title IX. “We are in a state where those rights keep pinging back and forth. It is really hard to know what kind of discrimination a student is supposed to be protected from, which can feel really isolating and scary for those students.”
The injunction will only apply to colleges in states listed as plaintiffs in the case, most of which already have state laws that are unfavorable to the rights of LGBTQ students. However, colleges can still create policies to protect transgender students on campus.
Joni Madison, interim president of the Human Rights Campaign, an organization that advocates for the rights of LGBTQ individuals, said, “We are disappointed and outraged by this ruling from the Eastern District of Tennessee.” Madison pointed out that colleges are still able to create their own policies that protect LGBTQ students on campus. She continued, “Nothing in this decision can stop schools from treating students consistent with their gender identity. And nothing in this decision eliminates schools’ obligations under Title IX.”
The legal action has no impact on the Education Department’s new set of Title IX regulations that were proposed in June and are currently in the process of a 60-day comment period. The proposal, which would codify protections against discrimination based on sexual orientation and gender identity, is expected to receive harsh pushback from anti-LGBTQ organizations and Republican states.
According to McGinn, identical legal challenges to the proposed regulations if they are codified into law are expected as well.
The Republican leader of the House Education and Labor Committee, Representative Virginia Foxx of North Carolina, was happy to see the ruling from the Eastern District of Tennessee and said in an email statement to Inside Higher Ed, “The administration would do well to heed this signal and withdraw its proposed regulations.”
The department is pursuing a separate rule-making process on athletics and Title IX, driven partly by the tension in various states around transgender students playing on sports teams that align with their gender identity. It is unclear when the department plans to begin this process.
Representative Suzanne Bonamici of Oregon, a Democrat and chair of the House Education and Labor Subcommittee on Civil Rights and Human Services, said, “All students deserve to be respected and have their rights protected, regardless of where their school is located. For too long the rights of transgender and LGBTQ+ students have been questioned and under attack, and the recent decision from the District Court in Tennessee further marginalizes our most vulnerable students.”