Feds defend guidance on anti-trans discrimination at Sixth Circuit

CINCINNATI (CN) — The Sixth Circuit heard oral arguments Wednesday in a case seeking to overturn a pause on the Biden administration’s guidance on discrimination protections for gay and transgender students.

The lawsuit was originally filed in 2021 after both the Equal Employment Opportunity Commission and the U.S. Department of Education issued guidance saying that employees and students cannot be discriminated against for their sexual orientation or gender identity.

The Biden administration's guidance came after the U.S. Supreme Court ruled in 2020 that federal anti-discrimination protections apply to gay and transgender individuals.

However, the ruling centered on workplace protections provided by Title VII of the Civil Rights Act of 1964, and it's unclear how that ruling applies to Title IX, which protects students from being discriminated on the basis of their sex.

The lawsuit spearheaded by 20 Republican-led states claimed that the federal government was overreaching by expanding the scope of the Supreme Court’s decision, and that the guidance constituted a new federal rule that needed to go through administrative procedures.

Last year, a federal judge in Tennessee agreed and ruled to suspend the guidance, finding the states had shown they would be harmed by having to comply.

“Because the challenged guidance documents affect the sovereign rights of plaintiff states, and because this case raises substantial questions regarding the validity of that guidance, the court finds the harm to plaintiffs outweighs any harm the preliminary injunction might cause defendants,” wrote U.S. District Judge Charles Atchley Jr., a Donald Trump appointee.

The federal government appealed that decision, bringing the case before a three-judge panel of the Sixth Circuit for a roughly hour-long hearing Wednesday morning.

Arguments from both sides centered almost entirely on procedural matters and not on the substance or merits of the Biden administration’s interpretations of the Supreme Court ruling and Title IX.

Justice Department attorney David Peters argued for the government that these interpretations are not enforceable rules, and that the lower court was wrong to issue an injunction against them.

“The state’s theory is that these documents prohibit specific state laws, but they don’t do that. These documents don’t address any particular state law,” Peters said.

U.S. Circuit Judge Joan Larsen, a Trump appointee, questioned Peters on why the Biden administration put out the guidance documents if they lacked any legal weight.

“I’m just still puzzled about why the administration would put out some documents that you are now claiming don’t mean anything,” Larsen said.

“The duty is to comply with Title IX, not these documents, and these documents were enjoined on procedural grounds,” Peters said.

Peters went on to say that the documents simply do not address the obligations of regulated entities to not discriminate against individuals based upon their gender identity and sexual orientation.

Appearing on behalf of the plaintiff states – except for Arizona, which indicated it did not want to be represented – was attorney Clark Hildabrand with the Tennessee Attorney General's Office, who told the judges that the injunction should be affirmed.

“These documents do impose obligations on the states that we did not have before the documents were issued,” Hildabrand said.

He argued that prior to the issuance of the documents, discriminating on the basis of gender identify or sexual orientation was not a violation of Title IX.

One of the key issues for the judges to determine is if the guidance constitutes a new rule, because if it does, Hildabrand argues that the Biden administration did not go through the proper administrative procedures.

Peters argued that the guidance documents are not new rules because they have no legal bearing despite language saying that the federal government would fully enforce them.

“These documents, in and of themselves, have no direct and appreciable legal consequences,” Peters said, “because they cannot be enforced.”

This line of arguing led the judges to ask why the lower court’s injunction would matter at all if the guidance is not enforceable.

Peters answered by saying there is an institutional interest in the case regarding when these types of documents are considered agency actions.

Larsen was joined on the panel by fellow Trump appointee U.S. Circuit Judge John B. Nalbandian, and by U.S. Circuit Judge Danny Boggs, who was appointed to the court by Ronald Reagan.

The judges did not say when they would issue a ruling.

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