A federal judge issued a ruling Friday that temporarily stops the U.S. Department of Education from enforcing in 20 states its policy that Title IX protects gay and transgender students from discrimination.
The Ed Deptartment interpreted that Title IX — the law banning sex-based discrimination in federally funded schools — allowed transgender students to use restrooms and locker rooms aligned with their gender identity.
Predominantly conservative states, led by Tennessee, sued the Ed Department last year, arguing guidance the agency issued in June 2021 ran afoul of federal law and regulatory processes and clashed with some of their state laws. Last month, the states again asked a federal court to halt the Ed Department's enforcement of the guidance, saying this was needed to protect their citizens from “continued federal threats.”
U.S. District Judge Charles Atchley Jr., an appointee of former President Donald Trump, late Friday granted their request temporarily. Under the decision, the Ed Department’s Title IX policy can’t be enforced in the states until the lawsuit is resolved.
The states’ “sovereign power to enforce their own legal code is hampered by the issuance of Defendants’ guidance and they face substantial pressure to change their state laws as a result,” Atchley wrote in his decision.
He gave the example of Tennessee, which has a law requiring public middle and high school students to participate in athletics based on their sex assigned at birth. But the Ed Department’s guidance states students should be allowed to join sports teams consistent with their gender identity.
Tennessee Attorney General Herbert Slatery III said in a statement the court recognized the federal government had put the 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.”
An Ed Department spokesperson said the agency is “disappointed in this decision, but we remain committed to protecting students and school communities from discrimination and will continue to do so to deliver on the promise of Title IX.”
Eduction Department moves to protect LGBTQ students
When the Ed Department published its Title IX guidance, it cited a landmark U.S. Supreme Court case, Bostock v. Clayton County, decided in June 2020. This ruling affirmed gay and transgender workers are shielded from discrimination under federal employment law.
The decision held that gay and transgender employees are protected under Title VII of the Civil Rights Act of 1964, which bars discrimination “because of” their sex. This is key language, as it mimics the wording of Title IX, which prevents discrimination “on the basis of sex” in educational settings.
At the same time the Ed Department issued its policy, the Equal Employment Opportunity Commission, or EEOC, put forth a similar one that employers must accommodate LGBTQ workers on certain issues, including their preferred restrooms and pronouns. Atchley's ruling also temporarily struck down the EEOC policies.
The 20 states sued in August 2021 to block the Ed Department and EEOC policies, saying they interfered with their right to govern. Specifically, they said the Ed Department’s actions violated the part of the Constitution barring Congress from using spending powers to force states to adopt federal rules as their own. And colleges that didn’t follow the department’s policies could have their federal funding revoked, the states argued.
Those states are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee and West Virginia.
What’s next?
LGBTQ advocates railed against the court's decision.
Joni Madison, interim president of the Human Rights Campaign, in a statement called it “another example of far-right judges legislating from the bench.”
“Nothing in this decision can stop schools from treating students consistent with their gender identity,” Madison said. “And nothing in this decision eliminates schools’ obligations under Title IX or students’ or parents’ abilities to bring lawsuits in federal court. HRC will continue to fight these anti-transgender rulings with every tool in our toolbox.”
The court order coincides with record-breaking numbers of anti-LGBTQ laws being introduced in states. At least 162 have come through state legislatures from the beginning of the year through July 1, according to a CNN analysis.
The new ruling will likely affect the Biden administration’s draft rule on Title IX, which it introduced last month and would firm up LGBTQ protections. The regulatory proposal cites the earlier Ed Department guidance.
A public comment period for the regulatory proposal expires in September. However, a final rule will likely not be finalized for many months, as the Ed Department is legally obligated to respond to all feedback it receives.
President Joe Biden moved early in his tenure to shield LGBTQ individuals from discrimination. In April 2021, the U.S. Department of Justice released a memo interpreting sexual orientation and gender identity to be protected classes under Title IX, also drawing on Bostock.
