July 22, 2022

Federal Judge Enjoins Agency Guidance on Transgender Students

Bernard Nash

Cozen O'Connor

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Cozen O'Connor

A federal judge in the U.S. District Court for the Eastern District of Tennessee granted 20 Republican AGs’ request to block the Biden Administration’s interpretation of Title VII and Title IX of the Civil Rights Act, which provided certain protections for transgender students and employees.
The AGs, led by Tennessee AG Herbert Slatery III, argued that guidance issued by the Department of Education and EEOC were both “procedurally and substantively unlawful” under the Administrative Procedure Act (APA) and the Constitution, when they extended the prohibition of sex discrimination under Title VII and Title IX to apply to discrimination on the basis of gender identity or sexual orientation. Specifically, the guidance documents said that the federal protections in Title VII and Title IX apply to transgender students who want to play on sports teams or transgender individuals who want to use bathrooms matching their gender identities, which the AGs argued conflict with their states’ laws and policies.
In its opinion granting a preliminary injunction, the court found that the Plaintiff states face a “credible threat” of losing significant funding due to their policies and laws that conflict with the federal guidance and that the guidance constitutes new legislative rules creating new rights and obligations and, as such, the agencies did not comply with the APA notice and comment requirements. The court granted the preliminary injunction for the Plaintiff states, but declined to extend it nationwide.

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