Today, we submitted an amicus brief to the 6th Circuit, asking the Court of Appeals to affirm the trial court’s injunction barring the Biden Administration from implementing faulty “guidance” that the Department of Education and the Chairman of the EEOC had issued to their regulated communities. Through those “guidance” documents, the Department and the EEOC Chairman purported to extrapolate from the Supreme Court’s Bostock decision that Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964, respectively, require all schools (that receive federal funding) and all employers to allow transgender individuals to use the single-sex bathrooms, locker rooms, and showers provided for the gender with which those individuals identify.
In the litigation, below, brought by Tennessee and a coalition of its sister states, the U.S. District Court for the Eastern District of Tennessee found issuance of the agencies’ “guidance” to have constituted final actions, purporting to alter the obligations of regulated parties, without having gone through either bicameralism and presentment or notice and comment. Unimpressed by the Administration’s claims that Bostock required these changes, the District Court issued a preliminary injunction against implementation of the “guidance” documents. The Administration appealed, asking the Court of Appeals to vacate the injunction.
Our brief explains why, as a simple matter of logic, the “guidance” provided by both agencies must be wrong. The language of Title IX and Title VII (and the language of Title IX’s 1975 Regulation, interpreting that language in this context) cannot mean what the “guidance” documents claim. This is so, because each statute includes an applicable exception to its general prohibition on sex discrimination, which affirmatively allows for the maintenance of single-sex facilities. It is also so, because — if they did not include such an applicable exception — each statute would prohibit the existence of any single-sex facilities, rather than allowing their maintenance while dictating that exceptions be made for those identifying with a gender different from their biological sex. And nothing in Bostock suggests the contrary — indeed, as explained, Bostock‘s logic is entirely consistant with this proper reading of Title IX and Title VII.
More, we argue that, while neither Title IX, nor Title VII compel regulated parties to make such exceptions to their otherwise applicable single-sex bathroom, locker room, and shower policies, the text of these statutes also should not be read as prohibiting schools or employers from making such exceptions as they choose to. We argue that Congress has not addressed that matter, leaving schools and employers the discretion to make the kind of reasonable decisions that they may decide their particular facts warrant.
The full brief is below.