Constitution of America, We the People.
A federal judge in Tennessee blocked the Biden administration from enforcing new guidance on LGBTQ civil rights, for the time being.
The court order comes after 20 state attorneys general filed a lawsuit last year against the Department of Education and Equal Employment Opportunity Commission following the two institutions implementing broader LGBTQ protections. Both the DoE and EEOC issued “guidance documents” on Title IX of the Education Amendments Act and Title VII of the Civil Rights Act in 2021 after the Supreme Court’s landmark decision in Bostock v. Clayton County, expanding the definition of sex discrimination to include discrimination based on sexual identity.
Background on Bostock and the Biden administration guidance
In Bostock, the Supreme Court held that “An employer who fires an individual merely for being gay or transgender violates Title VII.” A week later, the Department of Education issued new guidance on Title IX “With Respect to Discrimination Based on Sexual Orientation and Gender Identity.” In the interpretation, the DoE stated that Title IX’s prohibitions on sex discrimination “includes discrimination on the basis of gender identity and sexual orientation.”
Similarly, the EEOC published a “technical assistance document” the same day the Bostock decision was released. This document explained the implications of the Bostock case for employers and employees. For instance, under the commission’s interpretation, employers covered under Title VII would not be allowed to prohibit employees “from dressing or presenting consistent with that person’s gender identity.” Additionally, the commission stated, “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.”
The lawsuit and decision
In response, twenty state attorneys general sued the Biden administration last August. The lawsuit argued that Bostock “was a narrow decision” and that the Department and EEOC went beyond what the Supreme Court decided. The attorneys general added that the federal executive agencies “have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”
Both the Department of Education and EEOC requested a dismissal of the case, since there was no pending enforcement against companies delinquent under the new ruling. Additionally, according to the ruling, the DoEand EEOC maintained “that their respective guidance documents are required by the Bostock decision.”
However, district court judge Charles E. Atchley Jr. of the Eastern District of Tennessee disagreed with the administration. In his July 15 ruling, Atchley stated that both agencies ignored “the limited reach of Bostock,” specifically that it prohibited sex discrimination under Title VII. The judge wrote that the new “guidance documents advance new interpretations of Titles VII and IX and impose new legal obligations on regulated entities.” Under the Administrative Procedures Act process, such “legislative” guidance requires agencies to allow for a period of “notice and comment,” where affected parties can be informed and heard during agency rulemaking.
Impact of the case
Atchley issued a preliminary injunction against the DoE and EEOC. This prevents the agency from “implementing the Interpretation, Dear Educator Letter, Fact Sheet, and the Technical Assistance Document,” i.e. the documents with revised mandates on gender identity, against the 20 states in the lawsuit. The ruling will not impact other states, as Atchley ruled that it “should only apply to Plaintiffs.” He added, “The Court will not burden the States that did not join this litigation.”
Since New York State was not a party to the lawsuit, Atchley’s ruling does not affect the state or Cornell University. Additionally, New York has adopted more inclusive policies towards transgender students. This June, the SUNY Board of Trustees directed all SUNY campuses to “update their policies regarding the use of a chosen name and pronouns.” Cornell’s non-discrimination policy also “includes the protection of ‘sex, sexual orientation, gender identity and expression.’” Furthermore, the university “allows students, staff, faculty, and visitors to use the restroom or facility that corresponds to their gender identity.”
In short, the post-Bostock status quo will remain in the thirty states that did not join in suing over updated LGBTQ guidance. The future of Atchley’s injunction remains uncertain, with appeal by the DoE and EEOC looking likely.
