“It’s really hard to see what it is that the court’s enjoining here or what will change as a result of it,” Erchull said, especially since LGBTQ+ people can still sue their employer if they believe they were discriminated against. Schools can also still be sued by students or their parents, Minter said.
In the meantime, more lawsuits challenging Title IX’s LGBTQ+ protections have been filed. Last week, 22 states — again led by Tennessee’s attorney general — sued the U.S. Department of Agriculture for requiring states receiving federal nutrition assistance money to investigate discrimination based on gender identity and sexual orientation, as well as tasking them to update nondiscrimination policies. The administration issued the guidance based on Biden’s Title IX interpretation, as supported by Bostock.
Also last week, Florida’s education commissioner sent a memo urging the state’s superintendents and school boards to ignore the Biden administration’s Title IX interpretation, including that guidance from the USDA. As part of his reasoning, Florida education commissioner Manny Diaz cites the Tennessee lawsuit that just won a preliminary injunction.
The agency’s Title IX interpretation still has a long way to go before it becomes an enforceable rule, as it is still going through public comment. Even after the rule is finalized, the grounds to challenge it would be limited, Young said.
Whether Atchley’s injunction over the new Title IX guidance will be appealed by the Justice Department and reach the U.S. Court of Appeals for the 6th Circuit is also an open question — and LGBTQ+ experts differ on how they would expect the court to respond. Through a spokesperson, the DOJ declined to comment, citing pending litigation.
Anya Marino, clinical instructor at Harvard Law School’s LGBTQ+ Advocacy Clinic, said she would be “very surprised” to see the court ignore previous decisions made outside of Bostock that affirmed that discrimination on the basis of gender noncomformity does constitute sex stereotyping and violates either Title VII or Title IX.
“But it’s even more astounding to me that a court would create such a narrow carveout regarding the rules imparted by the Supreme Court in Bostock,” she said, referring to the Tennessee judge’s decision.
Anthony Michael Kreis, who teaches constitutional law and employment discrimination at the Georgia State University College of Law, said that while the outcome of the Tennessee judge’s ruling if appealed to the Sixth Circuit is unclear, he is concerned about the current hostility against LGBTQ+ rights.
“I think we’re dealing with a much more hostile environment generally against LGBTQ rights, which is not helpful for the litigation environment,” Kreis said. That hostility, seen in anti-trans and anti-LGBTQ+ bills and potentially after the overturning of Roe v. Wade, has left him feeling more pessimistic than he has in a long time.
“That makes me very uneasy, but whether that translates into more hostile rulings from federal judges, I think is a different question, and one that remains to be seen, but is certainly not an environment that I would want to litigate in,” he said.
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