On December 22, 2022, NWLC joined an amicus brief to the Sixth Circuit led by the ACLU in Tennessee v. Department of Education in support of interpretive documents issued by the Equal Employment Opportunity Commission (EEOC) and the Department of Education (DOE). Following the Supreme Court’s 2020 decision in Bostock v. Clayton County, the agencies issued the guidance documents to explain that prohibited sex discrimination under Title VII and Title IX should be interpreted to bar discrimination based on sexual orientation and gender identity. Twenty states brought a challenge to the guidance documents, claiming that the agencies violated the Administrative Procedure Act (APA) by issuing the documents without going through notice-and-comment rulemaking. The district court granted a preliminary injunction enjoining the enforcement of the documents for all of the plaintiff states, even those located outside of the court’s geographic jurisdiction. The agencies appealed the decision, asking¬†the Sixth Circuit to lift the injunction and allow implementation of the documents.

Our amicus brief explains that the guidance documents correctly interpret the Supreme Court’s decision in Bostock¬†and align with the precedents of several circuit courts, including the Sixth Circuit, that have held Title IX’s prohibition on sex discrimination to include discrimination based on sexual orientation and gender identity. The district court inexplicably ignored controlling Sixth Circuit cases that clearly found Title IX to prohibit discrimination in schools based on a student’s gender identity. Our amicus brief highlights the district court’s error in allowing states located in other jurisdictions to evade similar precedent in their home circuits. The district court, in deciding whether to issue a preliminary injunction, also applied the wrong legal standard by failing to consider the harm to third parties that would result from barring federal agencies from enforcing Title VII and Title IX in accordance with existing circuit precedents. Because the district court abused its discretion, our amicus brief urges the Sixth Circuit to reverse the clearly erroneous decision and allow agencies to enforce the guidance documents.