LGBTQ Legal Issues

Federal judge blocks guidance on bathroom, locker room access for transgender students and employees

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A federal judge in Tennessee has blocked guidance that says federal bans on sex discrimination protect transgender students and employees who want to use bathrooms and locker rooms and play on sports teams that correspond with their gender identity.

U.S. District Judge Charles E. Atchley of the Eastern District of Tennessee issued a preliminary injunction Friday that blocks the federal government from enforcing the guidance during litigation by 20 states that challenged it. Atchley said the injunction applies only to the plaintiff states, which want to enforce their own laws on bathrooms, locker room access and sports participation.

Atchley said the plaintiff states had shown a likelihood of success on their claim that the guidance amounted to legislative rules creating new rights and obligations, which meant that the federal government should have allowed notice and comment.

Federal agencies had broadly interpreted the U.S. Supreme Court decision Bostock v. Clayton County. Bostock had held that the ban on sex discrimination under Title VII of the Civil Rights Act extended to protect transgender and gay employees from being fired.

Atchley noted that the Bostock opinion expressly said the holding did not “purport to address bathrooms, locker rooms or anything else of the kind.” Nor did it address bans on sex discrimination in other federal laws.

The U.S. Department of Education and the Equal Employment Opportunity Commission had issued guidance and other documents regarding transgender protections following an executive order by President Joe Biden. The order said federal laws that prohibit sex discrimination also ban discrimination based on gender identity of sexual orientation.

The states that sued are Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.

Hat tip to Politico, Reuters, the Tennessee Lookout, Bloomberg Law and the Associated Press, which had coverage of the opinion.

Oklahoma Attorney General John O’Connor and the Human Rights Campaign have press releases here and here.

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