20 States Sue Education Department Over Transgender Restroom, Pronoun Guidance

By GQ Pan
GQ Pan
GQ Pan
September 3, 2021 Updated: September 3, 2021

Attorneys general from 20 mostly Republican-run states are suing the U.S. Department of Education (DOE), seeking to stop the enforcement of what they say is an “erroneous interpretation” of Title IX, the federal law that bans sex-based discrimination in schools.

The states, led by Tennessee, asked the court to block a guidance (pdf) issued this June by the Education Department. In a “Fact Sheet” attached to the guidance letter, the Department warns that it may launch a Title IX investigation if a school prevents a student from joining a sports team or using the restroom or locker room that aligns with the student’s gender identity.

The expanded interpretation of Title IX, according to the Education Department, stems from the U.S. Supreme Court decision in Bostock v. Clayton County, which focused on Title VII, the federal law prohibiting sex-based discrimination in the workplace. The Department said it applied Bostock’s Title VII interpretation to Title IX, because the two have “textual similarity” and that protecting gay and transgender students is consistent with the purpose of Title IX.

In the complaint (pdf) filed Monday, the attorneys general argued that the Education Department’s reasoning to apply Bostock is flawed, considering how narrow the Supreme Court ruling is.

“The Fact Sheet purports to provide examples of what constitutes discrimination under Title IX,” the complaint read. “Bostock did not address any of the examples of purported discrimination identified in the Fact Sheet.”

“In particular, the Fact Sheet indicates that preventing a ‘transgender high school girl from using the girls’ restroom’ would constitute discrimination, notwithstanding that Bostock expressly declined to resolve any questions about bathrooms, locker rooms, or the like,” it continued, adding that neither did Bostock have anything to do with transgender students participating in sports.

The attorneys general also argued that just because two statutes use similar language, it doesn’t necessarily mean that the interpretation of one can be applied to the other. In fact, the U.S. Court of Appeals for the Sixth Circuit specifically stated in a recent ruling (pdf) that “principles announced in the Title VII context do not automatically apply in the Title IX context.”

“The Department concluded that the phrase ‘on the basis of sex’ in Title IX has the same meaning as the phrase ‘because of … sex’ in Title VII,” they wrote. “The Court in Bostock was clear on the narrow reach of its decision and how it was limited only to Title VII itself.”

In the same lawsuit, the attorneys general also took aim at a guidance from the U.S. Equal Employment Opportunity Commission (EEOC) stating that a workplace can’t require transgender employees to operate in accordance with their biological sex assigned at birth.

Tennessee Attorney General Herbert H. Slatery III, who is leading the lawsuit, called the EEOC and DOE guidance “expansive and unlawful.”

“This case is about two federal agencies changing law, which is Congress’ exclusive prerogative,” Slatery said in a news release. “The agencies simply do not have that authority.”

Tenessee was joined by Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia in the lawsuit.

GQ Pan