Tennessee v. Dep't of Educ.

104 F.4th 577

STATE OF TENNESSEE; State of Alabama; State of Alaska;State of Arizona; State of Arkansas; State of Georgia; State of Idaho; State of Indiana;State of Kansas; Commonwealth of Kentucky; State of Louisiana;State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of Ohio;State of Oklahoma; State of South Carolina; State of South Dakota; State of West Virginia, Plaintiffs-Appellees,Association of Christian Schools International; A.F., a minor, by Sara Ford, her mother, Intervenors-Appellees, v. DEPARTMENT OF EDUCATION; Miguel Cardona,in his official capacity as Secretary of Education;Equal Employment Opportunity Commission; Charlotte A. Burrows,in her official capacity as Chair of the Equal EmploymentOpportunity Commission; U.S. Department of Justice; Merrick B. Garland, Attorney General,in his official capacity as Attorney General of the United States; Kristen Clarke,in her official capacity as Assistant Attorney Generalfor Civil Rights at the United States Department of Justice, Defendants-Appellants.

No. 22-5807

United States Court of Appeals, Sixth Circuit

Argued: April 26, 2023

Decided and Filed: June 14, 2024

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:21-cv-00308—Charles Edward Atchley, Jr., District Judge.

ARGUED: David Peters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Clark Lassiter Hildabrand, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Plaintiffs-Appellees except the State of Arizona. Matthew S. Bowman, ALLIANCE DEFENDING FREEDOM, Washington, D.C., for Intervenors-Appellees. ON BRIEF: David Peters, Charles Scarborough, Jack Starcher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Clark Lassiter Hildabrand, Steven J. Griffin, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Plaintiffs-Appellees except the State of Arizona. Matthew S. Bowman, John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Jonathan Scruggs, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Intervenors-Appellees. Keira McNett, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Brian Bilford, OFFICE OF THE CALIFORNIA ATTORNEY GENERAL, Los Angeles, California, Timothy Belz, OTTSEN LEGGAT & BELZ, LC, St. Louis, Missouri, Deborah J. Dewart, Hubert, North Carolina, Gary M. Lawkowski, DHILLON LAW GROUP, Alexandria, Virginia, Christopher Mills, SPERO LAW LLC, Charleston, South Carolina, Celia Howard O'Leary, SOUTHEASTERN LEGAL FOUNDATION, Roswell, Georgia, William E. Trachman, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, Peter N. Kirsanow, BENESCH, FRIEDLANDER, COPLAN & ARONOFF, LLP, Cleveland, Ohio, Kerry Lee Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte, Michigan, Talmadge Butts, FOUNDATION FOR MORAL LAW, Montgomery, Alabama, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Ryan D. Walters, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas, Lauren Adams Bone, JACKSON BONE LLP, Washington, Wisconsin, for Amici Curiae.

Before: BOGGS, LARSEN, and NALBANDIAN, Circuit Judges.

NALBANDIAN, J., delivered the opinion of the court in which LARSEN, J., concurred. BOGGS, J. (pp. 615-21), delivered a separate dissenting opinion.

OPINION

NALBANDIAN, Circuit Judge.

After the Supreme Court's 2020 Bostock decision, the U.S. Department of Education issued three documents under Title IX—each stating that the Department will now fully enforce Title IX to prohibit sexual orientation and gender identity discrimination in education programs and activities receiving federal financial assistance.¹ The Department's actions prompted twenty states to bring a pre-enforcement challenge. A district court granted the States a preliminary injunction. On interlocutory appeal, the Department challenges this ruling, arguing that the States lack standing, the Documents are unreviewable, and the district court abused its discretion in issuing the injunction. We disagree and affirm.

I.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in education programs or activities receiving federal financial assistance. A watershed enactment, Title IX contains two core provisions. The first prohibits discrimination: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The second relates to enforcement, authorizing agencies that award federal financial assistance to education programs to "issu[e] rules, regulations, or orders of general applicability," ensuring that aid recipients adhere to § 1681's mandate. Id. § 1682. One such agency is the Department of Education.

In the first few decades of Title IX's existence, the Department of Education—and its predecessor-in-enforcement, the Department of Health, Education, and Welfare—primarily issued regulations covering hiring, admissions, and athletics. Helped by the Supreme Court, the Department then extended § 1681's anti-discrimination mandate to cases of sexual harassment and retaliation. See Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (extending Title IX to sexual harassment); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (extending Title IX to retaliation).

In 1997, the Department issued guidance recognizing that harassment of a sexual nature directed at gay or lesbian students may constitute sexual harassment prohibited by Title IX. Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, 12039 (Mar. 13, 1997) (revised in 2001), https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf. Title IX protects students "even if the harasser and the person being harassed are members of the same sex." Id. But the Department made clear that "Title IX does not prohibit discrimination on the basis of sexual orientation." Id.²

Then, in 2014, the Office for Civil Rights ("OCR")—the Department's sub-agency tasked with enforcing civil rights laws—issued a Q&A document stating that Title IX protects "straight, gay, lesbian, bisexual and transgender students" from "sexual violence." U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence at 5 (Apr. 29, 2014) (rescinded in 2017), https://www2.ed.gov/about/offices/list/ocr/docs/qa201404-title-ix.pdf. Then in 2016, OCR issued a letter saying Title IX "encompasses discrimination based on a student's gender identity, including discrimination based on a student's transgender status." C.R. Div. & Off. for C.R., U.S. Dep't of Justice & U.S. Dep't of Educ., Dear Colleague Letter on Transgender Students at 1 (May 13, 2016) (rescinded in 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Both documents have since been rescinded. U.S. Dep't of Educ., Office for Civil Rights, Rescinded Policy Guidance (Aug. 16, 2021), https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/respolicy.html.

Next, in early 2021, the Department's general counsel issued a memorandum on the effect of the Supreme Court's decision in Bostock v. Clayton County, 590 U.S. 644, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020). Bostock held that an employer violates Title VII, which makes it unlawful to discriminate in employment against an individual "because of sex," by firing an individual for being gay or transgender. Id. at 669-71, 140 S.Ct. 1731. The Department's 2021 memorandum said that Bostock did not construe Title IX, and that the "Title IX text is very different from Title VII text in many important respects," including that Title IX "contains numerous exceptions authorizing or allowing sex-separate activities and intimate facilities to be provided separately on the basis of biological sex or for members of each biological sex." U.S. Dep't of Educ., Memorandum Re: Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) at 1 (Jan. 8, 2021) (rescinded in 2021), https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf. The memorandum said that "the Department's long-standing construction of the term 'sex' in Title IX" is that it means "biological sex, male or female." Id. at 2.

This is where our story begins. The new administration had a different take on Bostock. Basically, the opposite take. On June 22, 2021, the Department published its "Interpretation" of Title IX in the Federal Register. Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (June 22, 2021). The Department noted that OCR "at times has stated that Title IX's prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity." Id. But it explained that, given Bostock and Title IX's similarities to Title VII, the Department will now "fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department." Id. at 32639.

A "Dear Educator" Letter followed. Off. for C.R., U.S. Dep't of Educ., Letter to Educators on Title IX's 49th Anniversary (Letter to Educators), at *1 (June 23, 2021), https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf. The letter told Title IX recipients about the Notice of Interpretation and reiterated that the Department "will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity." Id. at *2.

The letter also attached...