Federal Judge Blocks LGBTQI+ Protections In 20 States

Federal Judge Blocks LGBTQI+ Protections In 20 States
July 22, 2022 admin

On July 15, 2022 a federal judge in Tennessee blocked enforcement of some federal agency guidance in twenty states* whose attorneys general had sued the agencies. Those documents, issued by the Department of Education and Equal Employment Opportunity Commission, clarified that the nondiscrimination laws enforced by their agencies prohibit discrimination based on sexual orientation and gender identity.

The plaintiff states have laws that conflict with the agency guidance and sought the relief from what they saw as an impossible choice: alter their state laws to fall in line with the guidance or risk enforcement, which could include loss of federal funding. For example, the agency guidance says that people should have access to the facilities consistent with their gender identity. But a Tennessee law defines a person’s gender as their sex assigned at birth and criminalizes intentionally allowing people to use a locker room or bathroom other than one designated for their gender (based on sex assigned at birth).

The agencies’ guidance documents followed a 2021 Biden Administration Executive Order based on Bostock v. Clayton County (2020). In Bostock, the Supreme Court found that employment discrimination based on sexual orientation and gender identity was prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. Interpretation of Title VII informs Title IX, leading to the June 2021 guidance from the Department of Education that said prohibited sex discrimination under Title IX includes discrimination on the basis of gender identity and sexual orientation.

The plaintiffs raised a number of issues, including that the guidance is too expansive and is beyond the Bostock ruling, and that none of the documents were subject to notice-and-comment rulemaking and so should not have the effect of law. As a reminder, the judge’s action here was a preliminary injunction, not a ruling on the merits of these arguments.

Schools and campuses in the 20 impacted states should continue to follow state and local law; so long as the injunction is in place, the Department of Education and the EEOC will not be enforcing this guidance in those states. Please note that the new regulations proposed by the Department of Education explicitly prohibit discrimination based on gender identity and sexual orientation.

* Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, Tennessee, South Carolina, South Dakota, and West Virginia. The guidance and technical assistance documents from the Department of Education and Equal Employment Opportunity Commission are still applicable in the rest of the United States.

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