CINCINNATI (CN) — The Sixth Circuit on Friday upheld a preliminary injunction against expanded Title IX guidance from the U.S. Department of Education. The expanded scope of the guidance was meant to protect LGBTQ students from discrimination based on their gender identity and sexual orientation.
But the Sixth Circuit's majority opinion held that states which oppose the expanded protections for LGBTQ students are "likely to suffer irreparable harm" if the new Title IX guidance is enforced.
"We... ask whether the states are 'likely to suffer irreparable harm in the absence of preliminary relief.' They are. Absent an injunction, the states will be forced to comply with the Department [of Education]'s new regulations, contrary to their own policies," U.S. Circuit Judge John Nalbandian, a Donald Trump appointee, wrote for the 44-page majority opinion on Friday. He was joined in his opinion by U.S. Circuit Judge Joan Larsen, another Trump appointee.
Title IX is a 1972 civil rights law that prohibits sex-based discrimination in schools that receive federal funding. In June 2021, the Department of Education issued several documents that outlined a revised interpretation of Title IX. The new interpretation advocated increased protections for LGBTQ students, particularly transgender students.
The revision was based on the Supreme Court's ruling in the 2020 case Bostock v. Clayton County, which held that Title VII of the 1964 Civil Rights Act prohibits employers from firing workers for being gay or transgender. The Equal Employment Opportunity Commission issued similarly-revised protection guidance for LGBTQ employees in June 2021, following the Bostock ruling.
Twenty Republican-controlled states sued the Department of Education, Department of Justice and EEOC in federal court that August, hoping to overturn the new Title IX and Title VII guidance documents. They argued the new civil rights law interpretations went beyond the Bostock ruling and represented unconstitutional overreach by the Biden administration. The states also argued the new guidance would violate their citizens' First Amendment rights, and — as the federal government can pull education funding over Title IX breaches — interfere with the enforcement of state laws that target transgender students.
The states sought, among other relief, "a declaratory judgment that Title IX does not require a Title IX recipient’s employees or students to use a transgender individual’s preferred pronouns" and "a declaratory judgment that Title IX does not prohibit plaintiffs and Title IX recipients located therein from maintaining athletic teams separated by biological sex or from assigning an individual to a team based on the individual’s biological sex."
A federal judge in Tennessee ultimately agreed that the Department of Education and EEOC may have overstepped their administrative authority. He granted the states a preliminary injunction on the revised Title IX and Title VII guidance in July 2022, pending a final resolution of the case. Another federal judge in Texas vacated the EEOC's Title VII guidance that October, once again finding the commission had overstepped its authority.
The federal government appealed the Title IX injunction, and the Sixth Circuit heard oral arguments on the matter in April. During arguments, Justice Department attorney David Peters claimed that the new civil rights interpretations were just that, interpretations. Not enforceable — or enjoinable — rules.
“The state’s theory is that these documents prohibit specific state laws, but they don’t do that. These documents don’t address any particular state law,” Peters said.
Peters' argument didn't convince the conservative majority on the appellate panel in April, and they remained unconvinced on Friday.
"In sum, the Department has adopted a new position on its enforcement of Title IX. Whether that position is a legislative rule is a matter for the merits. But for standing purposes, we know this much: thanks to whatever the Department published in the Federal Register, the Department is now locked into that position moving forward," Nalbandian wrote. "We know that it 'will fully enforce' that position, not 'any prior inconsistent' ones.
Senior Circuit Judge Danny Boggs, a Ronald Reagan appointee, broke from the majority opinion. In his nine-page dissent, Boggs found that the new Title IX interpretation documents "are neither binding in any meaningful sense nor the source of any legal obligations imposed on the states."
Boggs wrote that "these documents are no different than a speech given by the secretary or the president, announcing that henceforth the Department will take a particular litigating position in enforcing Title IX but leaving it free to change course if it determines that to be warranted."
"Put simply, the documents explain legal obligations; they do not create them," Boggs added.
Boggs also expressed skepticism that the plaintiff red states were in any real danger of facing legal consequences or losing federal funding for defying the new guidance.
"...The majority claims that the documents force the states into a supposed catch-22 where they must comply with federal law or lose federal funding. But the choice faced is neither Scylla nor Charybdis. There is always a choice between following the law and being punished," Boggs wrote "Here, the alleged liability — losing federal funding — is speculative at best."
The Sixth Circuit's majority opinion comes only days after a federal judge in Texas also ruled that the new Title IX guidance was unlawful.
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