Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a preliminary injunction against multiple Department of Education guidance documents that would apply the Supreme Court’s Bostock holding—that discrimination on the basis of sexual orientation or gender identity constitutes discrimination on the basis of sex—to Title IX. Of note, the decision did not address the substance of the Education Department’s position, but rather focused on whether this action is the sort that needs to go through a notice-and-comment rulemaking. In other words, this was more of an administrative law decision than one about statutory interpretation or gender equality.
Judge Nalbandian wrote the opinion for the court in Tennessee v. Department of Education. He was joined by Judge Larsen. Senior Judge Boggs dissented.
The suit against the Department of Education was filed by 20 state attorneys general. While there is little question the plaintiff states object to the substance of the Education Department’s position, the primary legal claim concerns whether the Department violated the Administrative Procedure Act in issuing the guidance documents without going through notice-and-comment. On this question, the court concluded that the plaintiff states were likely to succeed on the merits and that the district court did not abuse its discretion in issuing a preliminary injunction. In particular, the court concluded that the documents, while styled as guidances, were actually the sort of legislative rule subject to the APA’s procedural requirements. Specifically, the court credited the states’ arguments that the guidance documents effectively imposed new legal obligations upon them, and did not merely set forth how the Department interpreted and expected to apply pre-existing legal obligations.
Before reaching the merits, however, the panel had to address the government’s arguments that the plaintiff states lacked standing, that the guidance documents were not final agency actions subject to judicial review, and that judicial review of these actions was precluded. These are both questions that commonly arise in suits challenging agency actions that may have the effect of legislative rules without being styled as such. It was these preliminary questions—and standing in particular—that divided the judges. In Judge Boggs’ view, the documents at issue were more properly characterized as interpretive rules or policy statements, and thus not the sort of final agency action that is subject to judicial review or that can impose the sort of injury necessary for jurisdiction.
Given that the decision focuses on administrative law questions, there’s is very little in either opinion that addresses the underlying question of whether Bostock‘s interpretation of Title VII applies equally to Title IX. If the states are ultimately successful with this procedural challenge to the Department of Education’s position, it could be some time before federal appellate courts reach the merits of that question.
