Federal Judge Blocks Biden Transgender Protections
Judge rules that Title IX guidance burdens states with anti-LGBTQ laws, putting them at risk of losing federal funding.
A federal judge in Tennessee has temporarily blocked Biden administrative directives allowing transgender workers and students to use facilities and allowing student-athletes to compete on sports teams that align with their gender identity.
U.S. Judge Charles Atchley, Jr., of the Eastern District of Tennessee, ruled last Friday that the Biden administration’s directives would make it impossible for some states to enforce their own laws imposing certain restrictions on transgender people, such as prohibiting transgender individuals from participating on female sports teams or accessing bathrooms and locker rooms matching their gender identity.
Upon taking office last year, President Joe Biden issued an executive order designed to combat discrimination based on gender identity or sexual orientation. The order was intended to enforce the U.S. Supreme Court’s finding in Bostock v. Clayton County, Georgia that LGBTQ people are protected from employment discrimination under Title VII of the Civil Rights Act of 1964. The order sought to ensure that the federal government treats forms of anti-LGBTQ discrimination in the same way it would a case involving sex-based discrimination.
LGBTQ advocates had praised the order, noting that it would strengthen protections for workers — who can no longer be fired because of their sexual orientation or gender identity, per Bostock — by allowing them to live and express themselves freely, including in terms of how they identify.
That order also set the stage for subsequent guidance, issued by the U.S. Department of Education, which advised schools and administrators to investigate and treat instances of gender identity discrimination as a form of illegal sex discrimination under Title IX of the Education Amendments Act of 1972.
Under the Biden administration’s interpretation of Title IX, schools are expected to not to discriminate against transgender students or bar them from activities, programs, or benefits that are granted to other students. The guidance also calls on administrators to accommodate transgender students by allowing them to access facilities, such as restrooms and locker rooms, and to adhere to standards of grooming or dress that align with their gender identity.
A coalition of 20 Republican attorneys general sued the administration last year, arguing that they were placed in an untenable situation, risking the loss of federal funding if they attempted to enforce state laws that conflicted with the Biden administration’s guidance.
Atchley sided with the attorneys general, writing, in his order, that the states “cannot continue regulating pursuant to their state laws while simultaneously complying with Defendants’ guidance,” reports Reuters. He also refused requests by the U.S. Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission to dismiss the case.
The attorneys general also argued that, while the Supreme Court justices in the majority said, in the Bostock case, that LGBTQ workers can’t be fired solely on their gender identity or sexual orientation, they declined to opine on whether that meant transgender workers, for instance, should be allowed to access bathrooms or locker rooms aligning with their gender identity.
Atchley agreed, noting that the high court “explicitly refused to decide whether ‘sex-segregated bathrooms, locker rooms, and dress codes’ violate Title VII.”
Atchley’s ruling comes just weeks after the Department of Education unveiled proposals for adopting protections for LGBTQ and pregnant students, as well as pregnant employees. Those proposals are currently in the midst of a public comment period, which ends in September, as part of the federal rule-making process.
The Department also plans to launch a separate rule-making process to address transgender participation in athletic activities, though it’s not clear when official proposals will be released.
Tennessee Attorney General Herbert Slatery, who led the coalition of attorneys general challenging the law, hailed Atchley’s decision, criticizing the Biden administration of attempting to push through an unpopular policy by executive fiat.
“The District Court rightly recognized the federal government put Tennessee and other states in an impossible situation: choose between the threat of legal consequences, including the withholding of federal funding, or altering our state laws to comply,” Slatery said. “Keep in mind these new, transformative rules were made without you — without your elected leaders in Congress having a say, which is what the law requires. We are thankful the Court put a stop to it, maintained the status quo as the lawsuit proceeds, and reminded the federal government it cannot direct its agencies to rewrite the law.”
But the LGBTQ education advocacy organization GLSEN panned the ruling, claiming that Atchley ignored legal precedent “to advance an extreme political agenda” by blocking the Biden guidance.
“The Title IX guidance in question simply implemented the 2020 Bostock vs. Clayton County decision, in which the Supreme Court made clear that ‘it is impossible to discriminate against a person’ because of their sexual orientation or gender identity ‘without discriminating against that individual based on sex,'” Melanie Willingham-Jaggers, the group’s executive director, said in a statement.
“GLSEN’s research has shown us how important Title IX is and how far we have to go to realize its promise of education free from discrimination on the basis of sex, including sexual orientation and gender identity,” WIllingham-Jaggers added. “Those behind the ban are part of a broader, coordinated political attack on the LGBTQ+ community and on all people’s bodily autonomy; they cannot erase the existence of transgender kids and their supportive families, so they’re seeking a license to discriminate, bully, and bar equal access to bathrooms, club sports, and other school programs.”
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