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District Court Orders Ministry of Education Guidance to Protect EEOC and LGBTQ Rights | Bus, Berry & Sims PLC

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On July 15, the U.S. District Court in the Eastern District of Tennessee banned the Equal Employment Opportunity Commission (EEOC) and the Ministry of Education (ED) from enforcing guidance documents issued to interpret Civil Rights Act Title VII. I issued a temporary injunction to do so. Title IX of the Education Reform Act of 1964 (Title VII) and 1972 prohibits discrimination based on sexual orientation and gender identity.

Injunctions are the plaintiffs of the proceedings in the 20 states (Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota. State, Tennessee, West Virginia — EEOC and ED guidance that explicitly protects the rights of LGBTQ employees and students may not be enforced by these agencies during proceedings.


In June 2020, the Supreme Court Bostock vs. Clayton County“Gender” discrimination prohibited under Title VII includes prohibiting employers from discriminating against employees on the grounds of an individual’s sexual orientation or gender identity. The court came to the conclusion by interpreting the statutory language of Title VII, especially the phrase “gender-based.”Court Bostock In particular, it only addresses the issue of whether employees could be dismissed under Title VII due to LGBTQ status, and addresses issues such as “bathrooms, locker rooms”. Please note that there is no. .. .. Or something else. “

In January 2021, President Biden issued Presidential Decree No. 13988, “Presidential Decree on Prevention and Fighting Discrimination Based on Sexual Identity or Propensity” (Presidential Decree).Executive order, quote BostockInstructed federal agencies to interpret federal law that “prohibits sexism.” .. .. [to] Discrimination based on gender identity or sexual orientation is prohibited. “

In June 2021, in response to an Executive Order, the ED issued several Guidance Documents related to Title IX, including a memorandum of understanding published in the Federal Register, a letter from a dear colleague, and an accompanying fact sheet. did. In June 2021, EEOC issued a technical assistance document related to Title VII. All ED Guidance and EEOC Technical Assistance Documents, BostockGender discrimination based on, Title VII and Title IX includes discrimination based on sexual orientation and gender identity, and facilities where ED and EEOC match gender identity to transgender people (bathrooms, locker rooms). Etc.) are allowed to be used.

In August 2021, Tennessee filed a proceeding against ED, EEOC, and the Department of Justice, alleging that the ED Guidance Document and the EEOC Technical Assistance Document (collectively, Agency Guidance) were illegal with the addition of 19 other states. rice field. In particular, Tennessee and its sister states alleged that under the Administrative Procedure Act (APA), agency guidance was procedurally and substantially unhealthy and violated the 10th Amendment. Shortly thereafter, the state plaintiffs sought a provisional injunction. The United States opposed the injunction and, among other allegations, moved to dismiss the complaint because of its status and maturity.

Preliminary injunction

The court, combining opinions on the petition for dismissal and opinion on the preliminary injunction, found that the arguments for the two petition were essentially the same, dismissed the petition for dismissal, and issued a provisional injunction. I accepted the petition.

Government guidance injured the state as plaintiffs found that plaintiffs had established standing in the proceedings in dismissing the motion to dismiss, and these documents interfered with the state’s “sovereignty to enforce state law.” I explained that I let you. The court is largely inconsistent with agency guidance, including Tennessee law requiring 10 of the state plaintiffs to use the gender assigned at birth, for example, to allow public junior and senior high school students to participate in interdisciplinary athletic activities. Note that we have a law to do. The court ruled that in recognizing status, the state could not regulate in accordance with state law and at the same time could not comply with the guidance of government agencies. In addition, states are under pressure to change state law or risk losing federal funding.

The court also determined that the dispute was ripe for the ruling, and the question in the court was purely legal whether it was procedurally sound under the APA and substantially sound under the APA. I raised the issue and decided that it was suitable for a judicial decision. Bostock decision. The court ruled that the state did not have to wait for government guidance to be enforced before proceeding. State plaintiffs, who also have laws that contradict government guidance, change the law or are federal-funded by regulations that these states believe are illegal.

Reject the defendant’s allegation Bostock The ruling enforces government guidance, and the court is the Supreme Court Bostock Carefully limit that decision to Title VII only (not other federal law like Title IX) and the issue of termination of employment (not other issues such as bathrooms, locker rooms, or the use of preferred pronouns). did.In contrast, the court explained, agency guidance expanded the scope of Bostock..

Regarding the state plaintiff’s motion for a provisional injunction (the first factor being the possibility of success of the proposal), the court focused only on the plaintiff’s procedural discussions under the APA, and the possibility of success is possible. I decided it was expensive. The court has determined that the Agency Guidance constitutes the final legislative rule that requires APA-based notification and comment rule-making procedures (procedures that were not followed with respect to the Agency Guidance). The court then stated that the state suffered irreparable damage when the agency guidance was issued, given the apparent contradiction between the agency guidance and certain plaintiff state laws, as mentioned above. Certified. The court finally found that the public interest was in the proper application of the law and therefore in favor of the injunction.

The court denied plaintiffs’ request to impose a national injunction, determined that relief limited to 20 plaintiff states was sufficient to substantiate their interests, and states not in front of the court. Also said there were no signs of wanting to participate in agency guidance.

What does this mean?

The United States may appeal against this judgment, but has not filed a notice of appeal as of the date of this writing.

In the absence of appeal, the provisional injunction remains valid while the district court decides to sue the case. Assuming discovery is required, the parties will disclose and file a summary judgment containing “substantial” legal questions not determined by the court’s provisional injunction. While the injunction is in effect, 20 plaintiff states cannot enforce agency guidance by EEOC or ED, and these states may retain opposition state law without fear of losing federal funding. I can do it.

However, the injunction is is not Excludes private plaintiffs alleging that state law requiring gender-based treatment, which is inconsistent with agency guidance, violates the obligations of employers under Title VII or educational institutions under Title IX. .. So, for example, an educational institution that complies with one of the state plaintiffs’ laws regarding transgender students may be sued by the student for violating Title IX. If the court finds that an institution’s actions are in compliance with state law but violate Title IX, the institution will be liable under Title IX regardless of this injunction. The same analysis applies to title VII employers.

There is no doubt that legal progress in this area will continue without a complaint from the United States. The newly proposed regulation on Title IX, recently published in the Federal Register, addresses discrimination based on sexual orientation and sexual identity directly.

The newly proposed section 34 CFR § 106.11 explicitly states:[d]Gender discrimination includes discrimination based on. .. .. Sexual orientation, gender identity. In addition, in the modified 34CFR §106.31 (a) (2) ED, in limited circumstances where Title IX allows different treatments or isolations based on gender, “[a]Title IX prohibits “ignoring policies or engaging in practices that prevent a person from participating in an educational program or activity that is consistent with a person’s gender identity.”

The ED has already begun to correct procedural errors identified by the district court by engaging in rule-making for notifications and comments on this subject. The ED further indicates that it will create rules for individual notifications and comments on athletics issues that are expected to involve issues involving transgender athletes. These provisions of the proposed proceedings will almost certainly receive critical comments from the same state that is the plaintiff in this proceeding. Assuming the ED does not change them, it is reasonably expected that these states will also file proceedings to challenge these parts of the regulation.

The state employers and educational institutions where the injunction is implemented do not have agency guidance in place in that state, and the measures or policies taken for LGBTQ employees / students are subject to state law that contradicts: It should be noted that it can be. What campus employees and students believe applies under Title IX or Title IX.

All employers and educational institutions need to be aware of these issues. This can be expected to be an ongoing area of ​​disputed law.