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Tennessee judge suspends Biden’s guidance on anti-trans discrimination

The lawsuit, filed by 20 Republican attorneys general, took aim at a guidance Biden issued to tamp down on discrimination against trans people in schools and workplaces.

(CN) — A federal judge in Tennessee granted 20 Republican state officials’ request to suspend the Biden administration’s interpretation of Title VII and Title IX of the Civil Rights Act, which provided certain protection for transgender students and employees.  

The injunction was granted July 15 on behalf of 20 Republican attorneys general who challenged the legality of guidance provided by the Department of Education and the Equal Employment Opportunity Commission (EEOC) in the wake of an executive order signed by President Joe Biden the day of his inauguration in 2021.  

Biden’s order seized upon the 2020 U.S. Supreme Court ruling in Bostock vs. Clayton County, which determined under Title VII, “employers are prohibited from firing employees on the basis of homosexuality or transgender status.” According to the plaintiffs, Biden’s interpretation broadened the scope of the Bostock ruling to hold that “laws that prohibit sex discrimination … prohibit discrimination on the basis of gender identity or sexual orientation.” His order also directed federal agencies to “fully implement statutes that prohibit sex discrimination.”

Afterward, according to the complaint, both the Department of Education and the EEOC complied, issuing guiding documents clarifying prohibitions on “discrimination based on sexual orientation and gender identity.” The Department of Education said this applied to transgender students who wanted to play on sports teams or using bathrooms matching their identities.

The EEOC was more explicit, prohibiting employers from denying transgender persons the right to dress or present in a manner consistent with that person’s gender identity, while also ensuring equal access to bathrooms, locker rooms and showers corresponding to a person’s gender identity. The EEOC also prohibited the intentional and repeated use of “the wrong name and pronouns to refer to a transgender employee.” 

The plaintiffs claimed the documents were both “procedurally and substantively unlawful” under both the Administrative Procedure Act (APA) and the Constitution and thus filed a motion for preliminary injunction in September 2021. The government moved to dismiss the challenge.

U.S. District Court Judge Charles Atchley Jr., a Trump nominee, found the plaintiffs have standing because they have enacted laws regarding determinations of biological sex for school-sponsored athletic events or for the use of public facilities, and those laws conflict with the guidance. He also determined the plaintiffs would be injured by immediate compliance or future sanctions under the guidance.  

Tennessee, for example, received more than $1.54 billion in federal funds for K-12 schools in 2021, while its public institutions of higher education received some $88 million.

“The loss of such critical federal funding would require Tennessee to eliminate certain educational services or seek new funding sources to continue offering the same programs,” Atchley determined. “Furthermore, as an employer of 42,000 employees, the state of Tennessee faces considerable financial penalties for violating Title VII’s prohibition on sex discrimination as defined in the challenged guidance.” 

The judge found the defendants “ignored the limited reach of Bostock,” which “expressly declined to ‘prejudge’ how its holding would apply to ‘other federal or state laws that prohibit sex discrimination,’ such as Title IX.” Instead, the defendants’ guidance “advanced new interpretations of Titles VII and IX and imposed new legal obligations on regulated entities.” 

Atchley further found the departmental guidance constitutes new legislative rules creating new rights and obligation and, as such, the defendants did not comply with the APA’s notice and comment requirements. 

The injunction will only apply to the plaintiff states, and will require additional guidance from a higher court to lift. In a statement, Tennessee Attorney General Herbert Slatery said it was a victory.  

“The district court rightly recognized the federal government put Tennessee and other states in an impossible situation: choose between the threat of legal consequences including the withholding of federal funding, or altering our state laws to comply,” Slatery said. “We are thankful the court put a stop to it, maintained the status quo as the lawsuit proceeds and reminded the federal government it cannot direct its agencies to rewrite the law.” 

Tennessee was joined in the lawsuit by the attorneys general in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia. 

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