Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit upheld a preliminary injunction against several Department of Education guidance documents that sought to apply the Supreme Court’s Bostock ruling, which states that discrimination based on sexual orientation or gender identity is a form of sex discrimination under Title IX. The ruling did not delve into the substance of the Education Department’s position but instead focused on whether the issuance of these guidance documents required a formal notice-and-comment rulemaking process. Essentially, this was more of an administrative law decision rather than a ruling on statutory interpretation or gender equality.
Judge Nalbandian penned the court’s opinion in Tennessee v. Department of Education, with Judge Larsen concurring. Senior Judge Boggs dissented.
The lawsuit against the Department of Education was brought forth by 20 state attorneys general. While the plaintiff states clearly oppose the Education Department’s stance, the main legal argument revolved around whether the Department violated the Administrative Procedure Act by issuing the guidance documents without undergoing the necessary notice-and-comment process. The court found that the plaintiff states were likely to prevail on this claim and that the district court was justified in issuing a preliminary injunction. It was determined that the guidance documents, despite being labeled as such, functioned more as legislative rules and thus should have followed the APA’s procedural requirements. The court agreed with the states’ assertion that the documents imposed new legal obligations rather than simply interpreting existing ones.
Prior to addressing the substantive issues, the panel had to tackle the government’s arguments regarding the plaintiff states’ standing, the finality of the guidance documents as agency actions, and the question of preclusion of judicial review. These are common issues in cases challenging agency actions that may have regulatory effects without being explicitly labeled as such. The judges were divided on these preliminary matters, particularly on the issue of standing. Judge Boggs argued that the documents should be considered interpretive rules or policy statements, and therefore not subject to judicial review as final agency actions.
As the ruling primarily pertains to administrative law considerations, there was limited discussion in either opinion regarding the core issue of whether the Bostock interpretation of Title VII applies equally to Title IX. If the states succeed in their procedural challenge against the Education Department’s position, it may take some time before federal appellate courts delve into the substantive merits of this question.
