Tennessee v. U.S. Department of EducationCase No. 3:21-cv-308, 2022 WL 2791450 (ED Tenn., 15 July 2022).

20 states have appealed to stop enforcing the Department of Education (ED) guidance implementing Executive Order 13988 entitled “Executive Order on Preventing and Combatting Discrimination Based on Gender Identity or Sexual Orientation” .^[1] By Presidential Decree Bostock vs. Clayton County, from the Title VII case to Title IX. The executive order directed federal agencies to implement anti-discrimination laws consistent with the Biden administration’s interpretation because “laws that prohibit sex discrimination … prohibit discrimination based on gender identity or sexual orientation.” .^[2] The ED issued a Notice of Interpretation and a resulting Letter to Dear Educators.

Procedural history

The plaintiff country (plaintiff) filed a lawsuit to block the ED from enforcing the guidance document and sought a preliminary injunction requiring the court to act immediately. Twenty states challenged the legality of the ED’s guidance document, raising concerns about its constitutionality and whether the federal government followed the procedural requirements of the Administrative Procedure Act (APA) in issuing the guidance.

The court will grant a preliminary injunction if:

1. Complainant indicates likelihood of success on merits
2. The moving party suffers irreparable harm without an injunction
3. The injunction does not prejudice the other parties to the lawsuit
4. An injunction is in the public interest

Findings and critical issues

First, in the court’s view, the ED did not follow the APA’s notice and comment process before issuing guidance, and the court determined that plaintiffs were more likely to prevail on the merits of the claim.

Regarding the second consideration, courts summarized that plaintiffs would suffer irreparable harm if they failed to enforce their own state laws that may permit some form of discrimination based on sexual orientation and/or gender identity. and decided.

Turning to the third factor, in a succinct and logically questionable analysis, courts believe that plaintiffs are likely to prevail on the merits, so the ED has no legitimate interest in enforcing its own guidance document. I claimed. Therefore, ED cannot be harmed. The court did not cite any previous case law to support this legal theory, which appears to confuse the first and third elements.

Finally, the court made a similar dubious reasoning when considering public interest considerations, holding:[b]because I have a question about [ED’s] Complying with the APA would benefit the public from a preliminary injunction. ”^[3] If you’re asking why courts give four-part tests when the first, third, and fourth factors aren’t separate analyses, you’re probably not alone.

In particular, courts have chosen only to balance the public interests of the states enforcing the laws with the public interests of the agencies enforcing the regulations, and have determined that individuals (such as LGBTQIA+ students and employees) should not be considered in that public interest consideration. You didn’t weigh the harm that could be done to.

The court granted a preliminary injunction. ATIXA and TNG will continue to follow this case closely as it progresses.

Key points and recommendations

• The injunction applies only to the states involved in the case. See footnote 1 for the full list.
• A Notice of Proposed Rulemaking (NPRM) released by the ED in June 2022 reveals that the Department of Education intends upcoming Title IX rules to cover sexual orientation and gender identity . When the ED implements the new Title IX rule, it will “cure” the concerns this court has under the law governing how federal agencies issue guidance. In other words, the injunction is likely to be only a temporary victory for the litigating states. Civil Rights (OCR) cannot be relied upon to broadly enforce LGBTQIA+ equality in schools and educational institutions. They must follow state law or be prepared to challenge state law in court.
  • Note that despite this decision, Title IX will likely protect against discrimination based on sexual orientation and gender that relies on sexual stereotypes under existing law.
• If regulation of ED becomes law, its effect would preempt state laws that don’t protect based on gender identity and sexual orientation, but that’s not likely until 2023. Once the ED’s 2023 Title IX regulations take effect, these states may again file lawsuits to block the regulation. This issue may eventually go all the way to the Supreme Court. In the past, when the Supreme Court missed an opportunity to address this issue, GG Toilet-related access protections for trans students remain on the 4th Circuit due to the case described in footnote 4.
• Your school or school district need not rely solely on federal Title IX guidance to recognize that your community is protecting individuals from discrimination based on sex and gender. Other laws or policies may apply.
  • Federal case law in jurisdictions, particularly as it relates to access to facilities^[4]
  • state law or local ordinance
  • District or agency policy
  • If you do not have a district or agency policy, consider creating one.
  • Talk to an attorney about other considerations in your state, such as whether your state legislature is taking steps to expand or reduce LGBTQIA2SP+ rights.
• For the schools or institutions in the 20 states participating in this lawsuit, this Court’s decision does not necessarily mandate changes in policies and procedures. This decision only means that OCR cannot enforce sexual orientation and gender identity protections under Title IX. Schools have the option to provide these protections, unless prohibited by state law. ATIXA encourages you to create and/or maintain policies and procedures that protect sexual orientation and gender identity where permitted by state law and school culture.
• Religious schools covered under Title IX have the right to claim religious exemptions that allow them to engage in discrimination based on sexual orientation and gender identity. That exemption right will be included in the 2023 regulations.

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

^[2] Executive Order 13988, Par 2.

^[3] Tennessee v. Department of Education46 years old.

^[4] GG vs City of Gloucester. Shu.board972 F.3d 586 (4^th Sir. 2020) (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia); Whitaker v. Kenosha Unified Sch.distanceNo. 1, 858 F.3d 1034 (7^th Sir. 2017) (covering Illinois, Indiana and Wisconsin); Doe v. Boyerstown Area Sch.distance897 F.3d 518 (3^rd Sir. 2018) (covering Pennsylvania, New Jersey, Delaware and Virgin Islands); Adams v. Sch.St. Johns County Commission3 F.4^th 1299 (11^th Sir. 2021) (covering Alabama, Florida and Georgia).