A federal judge has temporarily blocked protections for transgender students that President Joe Biden enacted with an executive order in a case brought by the attorneys general of 20 states suing for the power to discriminate against trans students.
Judge Charles Atchley in the Eastern District of Tennessee – who was appointed by Donald Trump – issued a temporary injunction against the 2021 executive order saying that it “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws” this past Friday.
At issue is Title IX, the federal law that bans discrimination on the basis of sex in education. Biden’s executive order said that the law also bans anti-LGBTQ discrimination in schools that receive federal funding because it’s impossible to discriminate on the basis of sexual orientation and gender identity without taking sex into account.
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The order was based on similar reasoning used by the Supreme Court in its 2020 Bostock v. Clayton County, which said that anti-LGBTQ job discrimination violates the federal ban on sex-based discrimination. The EEOC and the Department of Education issued guidance to comply with the order.
The red state attorneys general, led by Tennessee, sued last August, saying that Bostock only applies to job discrimination. Their complaint repeatedly refers to trans girls and women as “biological men” and says that states should be allowed to discriminate against transgender students when it comes to sports teams and facilities like restrooms, forcing trans girls to use the boys’ restrooms, for example.
The “states’ sovereign authority to enforce its own legal code was directly injured as a result” of the order, Tennessee Associate Solicitor General Sarah Campbell argued in court.
“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,” wrote Judge Atchley in his decision. He added that the Department of Education’s guidance “ignore[s] the limited reach of Bostock.”
The temporary injunction stops the Biden administration from enforcing the executive order in the 20 states that joined in the lawsuit.