The Biden administration has leaned heavily on the Supreme Court’s Bostock decision to defend its gender identity directives on sports, pronouns and restrooms, but a federal judge is having none of it.
U.S. District Judge Charles Atchley, a Trump appointee in the Eastern District of Tennessee, temporarily blocked anti-discrimination guidances issued last year by the Education Department and Equal Employment Opportunity Commission, and sided with a coalition of 20 Republican attorneys general.
Kansas Attorney General Derek Schmidt was among the Republicans who hailed the judge’s order in the lawsuit, which was filed in August.
“We sued the Biden administration to stop it from punishing states that keep men out of women’s sports,” Mr. Schmidt said in a Sunday tweet. “Late Friday, the judge agreed and granted us a temporary injunction.”
The attorneys general argued that the Biden administration exceeded its authority with its sweeping directives on employment, scholastic sports and public accommodations, which the Biden administration defended by citing the Supreme Court’s 2020 ruling in Bostock v. Clayton County.
The Bostock decision, written by Justice Neil M. Gorsuch, held that employees could not be fired for being gay or transgender under Title VII of the Civil Rights Act of 1964.
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Judge Atchley ruled that the administration directives “ignore the limited reach of Bostock.”
“The Bostock decision only addressed sex discrimination under Title VII; the Supreme Court expressly declined to ‘prejudge’ how its holding would apply to ‘other federal or state laws that prohibit sex discrimination’ such as Title IX,” Judge Atchley said in his 47-page order.
He denied the administration’s motion to dismiss the lawsuit and granted a preliminary injunction on enforcement of the Education Department’s Title IX guidance and the EEOC’s Technical Assistance Document.
“Similarly, the Supreme Court explicitly refused to decide whether ‘sex-segregated bathrooms, locker rooms, and dress codes’ violate Title VII,” the judge said. “Bostock does not require Defendants’ interpretations of Title VII and IX. Instead, Defendants fail to cabin themselves to Bostock’s holding.”
The ruling was an early defeat for the administration as it pursues its ambitious effort to include sexual orientation and gender identity under Title IX, placing the federal government on a collision course with red states enacting laws to ban male-born athletes from female scholastic sports.
The administration has justified its decision to impose anti-discrimination measures via executive fiat in large part on the Bostock decision, a legal foundation that was shaken by Judge Atchley’s ruling.
In his Jan. 20, 2021, executive order, President Biden said that discrimination based on sexual orientation and gender identity in areas such as education and housing is prohibited “under Bostock’s reasoning,” even though Bostock applied to Title VII, which bans employment discrimination.
The majority opinion in Bostock said that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” but included a large caveat that kept the ruling narrow in scope.
“They say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,” Justice Gorsuch said.
Judge Atchley said that “in applying Bostock to Title IX, the Department overlooked the caveats expressly recognized by the Supreme Court and created new law.”
“Therefore, as explained above, Plaintiffs can show that the Department of Education’s guidance creates rights for students and obligations for regulated entities not to discriminate based on sexual orientation or gender identity that appear nowhere in Bostock, Title IX, or its implementing regulations,” he said.
Human Rights Campaign interim President Joni Madison took issue with the judge’s interpretation of the Supreme Court’s Bostock ruling.
“We are disappointed and outraged by this ruling from the Eastern District of Tennessee where, in yet another example of far-right judges legislating from the bench, the court blocked guidance affirming what the Supreme Court decided in Bostock v. Clayton County: that LGBTQ+ Americans are protected under existing civil rights law,” she said.
The Human Rights Campaign argued that the Bostock decision “recognized that Title VII’s framework of prohibiting discrimination based upon sex also, by its very nature, prohibits discrimination based on sexual orientation and gender identity.”
“Title IX, which uses a similar framework, also provides the same protections, as affirmed by the Department of Education’s guidance and numerous federal courts,” the group said.
Cheering the order was the conservative Alliance Defending Freedom, which said the “court concluded that the guidance is based, in part, on a flawed interpretation of Bostock v. Clayton County.”
“The court was right to find that the Biden administration exceeded its authority in issuing orders that jeopardize fair play,” said Alliance Defending Freedom senior counsel Jonathan Scruggs.
“The Biden administration’s radical push to redefine sex in federal law — and without the required public comment period — threatens to erase women’s sports and eliminate the opportunities for women that Title IX was intended to protect. We are pleased that female athletes will be protected in 20 states while this lawsuit moves forward,” he said.
The Alliance Defending Freedom has sought to intervene in the case on behalf of the Association of Christian Schools International and three female athletes in Arkansas.
The Education Department announced a proposed rule last month to expand Title IX to include sexual orientation, gender identity and sex characteristics. Public comment on the Federal Register is open until Sept. 12.
• Mica Soellner contributed to this report.