The Biden administration must pause its enforcement of federal guidance seeking to protect transgender students and workers in 20 states, a federal judge ruled Friday, siding with Republican-led states fighting to enforce anti-trans policies on their books.
The order issued late Friday allows the 20 states to continue enforcing controversial laws without risk of retaliatory action from the administration, including the loss of federal funding for schools. It drew praise from Tennessee, which is leading the states in a lawsuit, and condemnation from LGBTQ advocates who criticized the judge for “legislating from the bench.”
Tennessee and 19 other GOP-led states brought a lawsuit last August arguing guidance issued earlier that year by the Department of Education and the Equal Employment Opportunity Commission constituted an unlawful overreach of executive authority.
According to the agencies’ guidance, transgender students and workers are covered under Title IX, which prohibits sex discrimination at federally funded schools, and Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin. The guidance was designed to protect transgender individuals from a slew of anti-trans policies, including bans from school sports teams, bathrooms and locker rooms consistent with their gender identity, as well as measures that allow employers to intentionally refuse to use a worker’s preferred pronouns.
“As demonstrated above, the harm alleged by plaintiff States is already occurring – their sovereign power to enforce their own legal code is hampered by the issuance of defendants’ guidance and they face substantial pressure to change their state laws as a result,” Judge Charles E. Atchley Jr., a Trump appointee, wrote in his preliminary injunction.
“As it currently stands, plaintiffs must choose between the threat of legal consequences – enforcement action, civil penalties, and the withholding of federal funding – or altering their state laws to ensure compliance with the guidance and avoid such adverse action,” the order read.
CNN has reached out to the Department of Education and the EEOC for comment on the order.
The Biden administration hinged its guidance on the Supreme Court’s 2020 ruling in Bostock v. Clayton County that federal civil rights law protects transgender, gay and lesbian workers. The administration has been using the ruling to extend anti-discrimination protections to LGBTQ people in the US in numerous areas of life. The Education Department’s guidance issued last year had been a reversal of the Trump administration’s stance that gay and transgender students were not protected by the law.
But Atchley said in his order that the Education Department ignores “the limited reach of Bostock.”
Tennessee Attorney General Herbert H. Slatery III applauded the order in a statement Sunday, saying Atchley “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.”
“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,” he added.
The order drew outrage from LGBTQ advocates, with one of the nation’s largest LGBTQ rights groups calling it “yet another example of far-right judges legislating from the bench.”
“Nothing in this decision can stop schools from treating students consistent with their gender identity. And nothing in this decision eliminates schools’ obligations under Title IX or students’ or parents’ abilities to bring lawsuits in federal court,” Joni Madison, the Human Rights Campaign’s interim president, said in a statement Saturday. “HRC will continue to fight these anti-transgender rulings with every tool in our toolbox.”
The administration has been working to strengthen some of the protections being challenged in the lawsuit. President Joe Biden announced last month that the Education Department was issuing new rules that would clarify that Title IX’s protections against discrimination apply to sexual orientation and gender identity and that preventing someone from participating in a school program or activity consistent with their gender identity would be violate the law.
The proposed changes face a public comment period before being finalized.