When State Laws and Agency Guidance Conflict on SOGI

A federal district court judge in Tennessee recently ruled that the Department of Education was enjoined from implementing its June 22, 2021 Notice of Interpretation in 20 states who were plaintiffs in the lawsuit before him: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, Tennessee, South Carolina, South Dakota, and West Virginia. See State of Tenn., et al. v. U.S. Dep’t of Educ., No. 3:21- cv-308 (E.D. Tenn.) (July 15, 2022).


On the day of President Biden’s inauguration, Biden issued Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order applied the Supreme Court’s decision in Bostock v. Clayton County to declare that all federal laws that prohibit sex discrimination prohibit discrimination based on sexual orientation and gender identity.  The Executive Order further directed agencies “as soon as practicable . . . to ensure that it is fully implementing the policy set forth in this order.”

In line with the directives of this Executive Order, on June 22, 2021, the Department of Education (“DOE”) published a Notice of Interpretation titled “Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity.” The DOE explained that the purpose of the interpretation was “to make clear that the Department interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on sexual orientation and gender identity” in light of the Bostock decision.

In response, the twenty states listed above filed suit challenging the legality of DOE’s Notice of Interpretation (as well as EEOC guidance documents). Plaintiffs objected to the Notice of Interpretation because they have enacted and are currently enforcing statutes that “arguably conflict with Defendants’ guidance as to the legality of certain conduct related to sexual orientation and gender identity,” such as statutes addressing transgender use of multi occupancy restrooms and participation in sports.

Court’s Analysis

The district court recognized that the implication of the DOE’s Notice of Interpretation was that it required plaintiffs to “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.” Furthermore, the court agreed with the plaintiffs that the Notice of Interpretation violated the Administrative Procedure Act, because the Notice of Interpretation created new legal obligations for the plaintiff states without being subject to the required notice and comment period of administrative rulemaking. Accordingly, the district court issued a preliminary injunction enjoining enforcement of the DOE’s Notice of Interpretation in any of the twenty plaintiff states.

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