Trump District judge Charles Atchley of Tennessee issued a preliminary injunction against Biden Administration guidance that attempts to stop discrimination against LGBTQ+ students and workers. This led to a lawsuit by 20 Republican states against the guidance. Atchley issued his July 2022 order in State of Tennessee v US Department of Education.

 

What did the Biden Administration do to Help Protect LGBTQ+ Students from Discrimination?

 Within the first month of the new administration, President Biden issued an executive order on “preventing and combating discrimination on the basis of gender identity or sexual orientation.” The order sought to implement the Supreme Court’s 2020 decision in Bostock v Clayton County. The Court ruled in that case that Title VII’s prohibition against employment discrimination on the basis of sex by definition bars employment discrimination on the basis of sexual orientation and gender identity. The executive order applies that logic to other federal laws.. It directed federal agencies to “fully implement” laws that prohibit sex discrimination in accord with this interpretation of Bostock.

 The EEOC and the Department of Education (DOE) issued guidance and directives to implement the order. The EEOC issued a Technical Assistance Document that explained Bostock as discussed in the Executive Order. It stated that the EEOC would apply this interpretation in future enforcement actions and gave examples. The EEOC made clear that the guidance did not itself have the force of law and that the facts of individual cases would control.

DOE issued a written “Notice of Interpretation” of Title IX, the federal law that prohibits sex discrimination in education programs that receive federal funds, in light of Bostock. It explained that it would interpret Title IX as prohibiting discrimination based on gender identity and sexual orientation. The Department also sent a standard letter and fact sheet to that effect to education officials. It also made clear that the guidance itself did not have the force of law and that individual facts and the law would control in any case or investigation. The Department’s interpretation effectively reversed a Trump Administration interpretation that claimed that Bostock had no effect on Title IX.

 

Did the Far Right Challenge the Biden Administration’s Pro-LGBTQ+ Actions and What Happened?

 Yes. 20 Republican states, led by Tennessee, filed a lawsuit claiming that the EEOC and DOE guidance was invalid. Trump judge Atchley is the presiding judge in the case.

Even though no enforcement or related action had occurred under the guidance, the states asserted that the guidance has injured them. For example, Tennessee pointed out that its laws provide that a student’s biological sex determines their ability to participate in high school sports. This contradicts the Department’s guidance that a student’s gender identity should control, the state maintained, and threatens to interfere with its ability to enforce its laws.

The states sought a preliminary injunction to prohibit any action to carry out the government guidelines until the lawsuit’s final resolution. The Justice Department responded that the suit should be dismissed, since no actual enforcement action yet presented the conflicts alleged by the states. The Department also noted that DOE had issued a proposed regulation that would codify its guidance into law, and that it would consider any comments received by September before adopting the rule. It also plans to issue a separate rule concerning sports eligibility.

Trump judge Atchley, however, did what the state wanted. He issued a preliminary injunction that prohibits DOE and EEOC from “implementing” their guidance in any way until the final resolution of the case.

The Human Rights Campaign (HRC) explained that it was “disappointed and outraged” by Atchley’s ruling. It noted that the injunction improperly “blocked guidance affirming what the Supreme Court decided in Bostock”. The injunction, HRC went on,  constituted “another example of far-right judges legislating from the bench.”

 

What happens now?

 The Justice Department will likely appeal Atchley’s ruling to the Sixth Circuit. In addition, DOE will go forward with its rulemaking, which should establish a more comprehensive record supporting its forthcoming final rule. HRC and others have urged schools and employers to continue to follow Bostock even as DOE and EOC actions are challenged. At least in the 20 Republican states that have filed the current challenge, however Atchley’s decision will clearly impair progress towards preventing discrimination against  LGBTQ+ students and workers.