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A federal judge in Tennessee has temporarily blocked the Biden administration’s guidance on two federal laws aimed at preventing discrimination against LGBTQ+ people, with the judge saying it keeps states from enforcing anti-transgender laws.
The Department of Education had issued a notice last year that it would enforce the ban on sex discrimination in Title IX of the Education Amendments of 1972 to include discrimination based on sexual orientation or gender identity in any educational program or activity that receives federal funds. The Equal Employment Opportunity Commission put out a similar notice on discrimination in the workplace. These actions were in keeping with the Supreme Court’s 2020 ruling in Bostock v. Clayton County that another federal law, Title VII of the Civil Rights Act of 1964, in banning sex discrimination in employment, also bans discrimination based on sexual orientation and gender identity.
But a group of Republican attorneys general from 20 states, led by Tennessee, sued to challenge the guidance, and late Friday Judge Charles Atchley of the U.S. District Court for the Eastern District of Tennessee issued an order blocking it while the suit is heard, the Associated Press reports.
The guidance “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws” that bar trans people from playing on the school sports teams or using the restrooms that match their gender identity, Atchley wrote.
“As it currently stands, plaintiffs must choose between the threat of legal consequences — enforcement action, civil penalties, and the withholding of federal funding — or altering their state laws to ensure compliance with the guidance and avoid such adverse action,” continued Atchley, who was appointed to the judgeship by Donald Trump. The guidance also ignores “the limited reach of Bostock,” he wrote.
In oral arguments in November, Sarah Campbell, then associate solicitor general for Tennessee, contended that the Education Department had rewritten federal antidiscrimination law and that a state’s “sovereign authority to enforce its own legal code was directly injured as a result.” Campbell is now a member of the Tennessee Supreme Court.
The Education Department is taking steps to write the guidance into law. In June, it unveiled a proposed rule that would assure that Title IX would be enforced against anti-LGBTQ+ discrimination and would also combat sexual assault and harassment. The department is taking public comment on the rule for 60 days before finalizing it. It plans to issue a separate rule regarding Title IX’s application to sports.
The Human Rights Campaign denounced Judge Atchley’s action. “We are disappointed and outraged by this ruling from the Eastern District of Tennessee where, in yet another example of far-right judges legislating from the bench, the court blocked guidance affirming what the Supreme Court decided in Bostock v. Clayton County: that LGBTQ+ Americans are protected under existing civil rights law,” HRC Interim President Joni Madison said in a press release.
She also pointed out that schools are still free to adopt inclusive nondiscrimination policies. “Nothing in this decision can stop schools from treating students consistent with their gender identity,” she 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.”