State of Tenn. v. Dep't of Educ.State of Tenn. v. Dep't of Educ.
Plaintiffs-Appellees,
ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; A.F., a minor, by Sara Ford, her mother,
Intervenors-Appellees,
v.
Defendants-Appellants.
Argued: April 26, 2023
Decided and Filed: June 14, 2024
Before: BOGGS, LARSEN, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: David Peters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Clark Lassiter Hildabrand, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Plaintiffs-Appellees except the State of Arizona. Matthew S. Bowman, ALLIANCE DEFENDING FREEDOM, Washington, D.C., for Intervenors-Appellees. ON BRIEF: David Peters, Charles Scarborough, Jack Starcher, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Clark Lassiter Hildabrand, Steven J. Griffin, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Plaintiffs-Appellees except the State of Arizona. Matthew S. Bowman, John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Jonathan Scruggs, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Intervenors-Appellees. Keira McNett, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Joshua A. Block, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Brian Bilford, OFFICE OF THE
NALBANDIAN, J., delivered the opinion of the court in which LARSEN, J., concurred. BOGGS, J. (pp. 45–53), delivered a separate dissenting opinion.
OPINION
NALBANDIAN, Circuit Judge. After the Supreme Court‘s 2020 Bostock decision, the U.S. Department of Education issued three documents under Title IX—each stating that the Department will now fully enforce Title IX to prohibit sexual orientation and gender identity discrimination in education programs and activities receiving federal financial assistance.1 The Department‘s actions prompted twenty states to bring a pre-enforcement challenge. A district court granted the States a preliminary injunction. On interlocutory appeal, the Department challenges this ruling, arguing that the States lack standing, the Documents are unreviewable, and the district court abused its discretion in issuing the injunction. We disagree and affirm.
I.
In 1997, the Department issued guidance recognizing that harassment of a sexual nature directed at gay or lesbian students may constitute sexual harassment prohibited by Title IX. Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, 12039 (Mar. 13, 1997) (revised in 2001), https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf. Title IX protects students “even if the harasser and the person being harassed are members of the same sex.”
Then, in 2014, the Office for Civil Rights (“OCR“)—the Department‘s sub-agency tasked with enforcing civil rights laws—issued a Q&A document stating that Title IX protects “straight, gay, lesbian, bisexual and transgender students” from “sexual violence.” U.S. Dep‘t of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence at 5 (Apr. 29, 2014) (rescinded in 2017), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf. Then in 2016, OCR issued a letter saying Title IX “encompasses discrimination based on a student‘s gender identity, including discrimination based on a student‘s transgender status.” C.R. Div. & Off. for C.R., U.S. Dep‘t of Justice & U.S. Dep‘t of Educ., Dear Colleague Letter on Transgender Students at 1 (May 13, 2016) (rescinded in 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Both documents have since been rescinded. U.S. Dep‘t of Educ., Office for Civil Rights, Rescinded Policy Guidance (Aug. 16, 2021), https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/respolicy.html.
Next, in early 2021, the Department‘s general counsel issued a memorandum on the effect of the Supreme Court‘s decision in Bostock v. Clayton County, 590 U.S. 644 (2020). Bostock held that an employer violates Title VII, which makes it unlawful to discriminate in employment against an individual “because of sex,” by firing an individual for being gay or transgender. Id. at 669–71. The Department‘s 2021 memorandum said that Bostock did not construe Title IX, and that the “Title IX text is very different from Title VII text in many important respects,” including that Title IX “contains numerous exceptions authorizing or allowing sex-separate activities and intimate facilities to be provided separately on the basis of biological sex or for members of each biological sex.” U.S. Dep‘t of Educ., Memorandum Re: Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) at 1 (Jan. 8, 2021) (rescinded in
This is where our story begins. The new administration had a different take on Bostock. Basically, the opposite take. On June 22, 2021, the Department published its “Interpretation” of Title IX in the Federal Register. Enforcement of Title IX of the Education Amendments of 1972 With Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32637 (June 22, 2021). The Department noted that OCR “at times has stated that Title IX‘s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity.”
A “Dear Educator” Letter followed. Off. for C.R., U.S. Dep‘t of Educ., Letter to Educators on Title IX‘s 49th Anniversary (Letter to Educators), at *1 (June 23, 2021), https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf. The letter told Title IX recipients about the Notice of Interpretation and reiterated that the Department “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity.”
The letter also attached a “Fact Sheet.” C.R. Div. & Off. for C.R., U.S. Dep‘t of Justice and U.S. Dep‘t of Educ., Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families (Fact Sheet), https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-202106.pdf. The Fact Sheet asserts that “discrimination against students based on their sexual orientation or gender identity is a form of sex discrimination prohibited by federal law.”
The Fact Sheet adds that Title IX‘s financial recipients “have a responsibility to investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” R. 1-4, PageID 73. And the Department “can also provide information to assist schools in meeting their legal obligations.”
On August 30, 2021, twenty states3 sued, challenging the legality of these Documents.4 The Plaintiff States operate educational
The States moved for a preliminary injunction on September 2, 2021. They requested that the district court enjoin the Department from enforcing the challenged Documents until the case is resolved on the merits. The Department filed a response, as well as a motion to dismiss for lack of subject matter jurisdiction and failure to state plausible claims for relief. The Department presented identical arguments in its motion to dismiss and its response to the Plaintiff States’ motion for preliminary injunction. So the district court decided to resolve both motions in the context of whether a preliminary injunction was warranted. In an order granting the States a preliminary injunction (and denying the motion to dismiss), the district court found
that the States have standing, the Department‘s Documents are reviewable, and the States’ claim that the Documents had to go through notice and comment is likely to succeed.5 On that basis, the court enjoined and restrained the implementation of the Documents against the Plaintiff States. The Department timely appealed.
II.
We first consider whether the States’ claims are justiciable. See, e.g., Kentucky v. Yellen, 54 F.4th 325, 335 (6th Cir. 2022). This Court reviews standing questions de novo. Sullivan v. Benningfield, 920 F.3d 401, 407 (6th Cir. 2019). And because this case is at the preliminary-injunction stage, the States must only show “a ‘substantial likelihood’ of standing” to be “entitled to a preliminary injunction.” Memphis A. Philip Randolph Inst. v. Hargett, 978 F.3d 378, 386 (6th Cir. 2020). If any State can‘t make this showing, we must deny it preliminary relief, but we don‘t have to dismiss the State from the case, as long as one State has standing.
We consider three theories supporting the States’ standing: (1) a proprietary-interest theory, (2) a sovereign-interest theory, and (3) a procedural-rights theory. In the end, all twenty Plaintiff States show a substantial likelihood of standing sufficient to obtain a preliminary injunction.6
A.
First, the proprietary-interest theory. States have “proprietary” standing to sue if state entities “reliant on the states’ coffers” will “become subject” to federal regulations that threaten those coffers. Kentucky v. Biden, 23 F.4th 585, 594–95 (6th Cir. 2022); see also Minnesota v. N. Sec. Co., 194 U.S. 48, 68 (1904) (acknowledging that states possess protectable proprietary interests).7 A state “is bound to have a variety of proprietary interests.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). “A State may, for example, own land or participate in a business venture,” in which case “it is likely to have the same interests as other similarly situated proprietors” and “may at times need to pursue those interests in court.” Id. at 601-02; see also Bldg. & Const. Trades Dep‘t, AFL-CIO v. Allbaugh, 295 F.3d 28, 35 (D.C. Cir. 2002) (The “Government unquestionably is the proprietor of its own funds, and when it acts to ensure the most effective use of those funds, it is acting in a proprietary capacity.“). For instance, state universities fall under the purview of these interests, including to the extent that they receive federal funding. Kentucky v. Biden, 23 F.4th at 594–95.
Indeed, for 70 years a state has been able to assert Article III standing via injuries to a state university—the state‘s “agency in the educational field.” Arkansas v. Texas, 346 U.S. 368, 371 (1953); see id. at 370 (holding that Arkansas had Article III standing to represent the interests of the University of Arkansas because under Arkansas law “the University of Arkansas is an official state instrumentality” and “any injury . . . to the University is an injury to Arkansas“). And the Supreme Court recently reaffirmed that a state “seek[s] to protect its own interests” when it enters court to redress the harms of an instrumentality of the state, such as a state university. Biden v. Nebraska, 143 S. Ct. 2355, 2366–67 (2023) (holding that a state had standing because its “instrumentality” that suffered an injury “was created by the State to further a public purpose, is governed by state officials and state appointees, reports to the State, and may be dissolved by the State“).
The Department concedes that, because of the Documents, the States may sustain injuries “in their capacity as employers or educators.” Appellants Br. at 31. This is true for various reasons. For example, as the States note, a regulation that prohibits “discrimination on the basis of gender identity allows the Department to take action against a school that only allows (biological) girls to try out for girls’ teams.” States Br. at 18. On top of that, under the Documents, the Department may take enforcement action against any school that regulates entry to restrooms based on biological sex. Plus, the Documents impose new duties on the States. The States must now “investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” Fact Sheet, supra. And what if the States don‘t investigate or address incidents in the way the Documents specify? By not complying, the States’ schools face legal and financial consequences because of Title IX‘s enforcement mechanisms. See
This fear is not unfounded. It comes directly from the text of the Documents.
Alongside the threat of enforcement come the penalties the Department can impose. Title IX allows the Department to suspend or terminate federal education funding if it doesn‘t achieve voluntary compliance.8
funding, the Department can take any other means authorized by law, such as referring the matter to the Department of Justice.
The Documents threaten the States’ educational institutions with financial penalties, specifically the revocation of federal funds, if they don‘t comply with the policies outlined in its letter. This is an injury to the States as proprietors of their educational institutions and is sufficient to confer standing. And because all twenty States operate educational institutions, each State has standing under the proprietary-interest theory.
The next question is whether that injury is imminent. It is. For pre-enforcement challenges, a party may establish imminence with “an adequate showing that sometime in the relatively near future” it
The States “have shown that their existing” policies dealing with biological sex-separated programs are “threatened with modification” under the Documents, that federal education funding provides “critical funding for their functions,” that they are “likely to continue” enforcing their policies while accepting federal funds, that such funding is “likely subject to the [Documents‘] mandate, and that resistance to the [Documents‘] mandate will likely lead either to the loss of [funding] or difficulty executing” education programs. Id. at 601. In short, because the States allege that they are “likely” to continue doing what the Documents prohibit, “we are satisfied that” they have “standing to bring this lawsuit.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 212 (1995).
Any remaining doubt about imminence is resolved when we consider the fact that, under the Documents, the schools now “have a responsibility to investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” R. 1-4, PageID 73. And the Department tells schools that these are “legal obligations” that they must “meet[].”
Up next, traceability and redressability. The injury here is traceable to the Documents. See Lujan, 504 U.S. at 560. On the one hand, we have a new position on what sex discrimination can include, requiring states to both investigate different forms of discrimination and get rid of policies to the contrary. On the other, we know that the Department “will fully enforce” its new position on Title IX. Enforcement of Title IX, 86 Fed. Reg. at 32639. Indeed, the Department has stated a position to only enforce Title IX with its new interpretation going forward, not “any prior inconsistent” ones.
B.
Second, the sovereign-interest theory. States cannot “bypass proof of injury,” but, in their capacities as sovereigns, they can incur injuries that private parties cannot. See Arizona v. Biden, 40 F.4th 375, 385–86 (6th Cir. 2022). For instance, states have Article III standing when “quasi-sovereign rights [are] actually invaded or threatened.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm‘n, 576 U.S. 787, 802 n.10 (2015) (quoting Massachusetts v. Mellon, 262 U.S. 447, 485 (1923)). Relevant here, “a State clearly has a legitimate interest in the continued enforceability of its own statutes.” Maine v. Taylor, 477 U.S. 131, 137 (1986). So “when a federal regulation purports to preempt state law,” states have “a sovereign interest to sue the United States.” Kentucky v. Biden, 23 F.4th 585, 598 (6th Cir. 2022) (collecting cases).11
That makes sense. The “history and tradition” of sovereign interests shows that such interests can establish Article III standing. United States v. Texas, 599 U.S. 670, 676 (2023) (quoting Sprint Commc‘ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008)). So “precedent, history, or tradition of courts” inform our understanding of whether a state has established an Article III injury. Id. at 677. Looking to those sources here reveals important background principles about states’ ability to protect their sovereign interests, such as regulating education within their borders.
The understanding that states could assert their sovereign interests against the federal government appears often in Founding-era evidence. Key among the talking points in the framing of our Constitution was federalism, the innovative mode of government we still embrace today. The Constitution delegated “few and defined” powers to the federal government, while the states retained “a very extensive portion of active sovereignty.” The Federalist No. 45, at 286, 289 (James Madison) (C. Rossiter ed., 1961). Indeed, the powers that “remain in the State governments are numerous and indefinite.”
Yet some remained skeptical about the division of power. See, e.g., Letters from a Federal Farmer No. 18 (1788), in 2 The Complete Anti-Federalist 339, 345 (H. Storing ed., 1981) (“[T]he stipulations of a state, or of the inhabitants of the place ceded, can be of but little avail against the power and gradual encroachments of the union.“). Anti-Federalists worried that the Constitution was “designedly framed[] to reduce the state governments to mere corporations, and eventually to annihilate them.” J. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 182 (1996); see also Brutus 1 (1787), in 2 The Complete Anti-Federalist, supra, at 367 (lamenting that the Constitution, through the Necessary and Proper Clause, allows the federal government to “exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government“).
To address these concerns, the Framers assured the public that the federal government would “at all times stand ready to check the usurpations of the state governments,
Important here, among the sovereign “powers” that the Constitution “reserved to the States” was the ability to regulate the education of their citizens.
So we know that preemption of a state law is an injury that gives rise to Article III standing because it infringes a state‘s sovereign interests. The next question is: at this stage of the suit, do any of the States here sufficiently show that injury? The answer: yes.15
Keeping in mind the novel policy expressed in the Documents, several states had conflicting policies in place at the time the complaint was filed.16 As we have
So the sovereign-interest theory shows another injury suffered by the States, an injury to their interest in enforcing their duly enacted laws without contradiction from the federal government. As for imminence, traceability, and redressability, the analysis under the sovereign-interest theory is similar to the analysis discussed above for the proprietary-interest theory. The injury is imminent because the Department has made clear that it will investigate states not in compliance with its new regime, thus putting the Plaintiff States on a collision course with the federal government. For traceability, the States’ sovereign injuries are “fairly traceable to the challenged action of the defendant,” Lujan, 504 U.S. at 560, because the Department‘s stance on discrimination conflicts with how the States regulate education. And, as mentioned under the proprietary-interest theory, a court can likely redress the States’ injuries with “a favorable decision” by holding that the Documents are not enforceable against the Plaintiff States. Id. at 561 (citation omitted).
C.
Proprietary and sovereign interests aside, all twenty States have a substantial likelihood of standing under a procedural-rights theory.17 We have long recognized that parties have Article III standing when an agency action allegedly did not abide by procedural requirements that are designed to protect the plaintiff‘s concrete interests. See Dismas Charities, Inc. v. DOJ, 401 F.3d 666, 677–78 (6th Cir. 2005) (holding that plaintiffs had standing because they had concrete interests that
The States must first have Article III standing. Under a procedural-rights theory, “when a statute affords a litigant ‘a procedural right to protect his concrete interests,’ the litigant may establish Article III jurisdiction without meeting the usual ‘standards for redressability and
immediacy.‘” Dep‘t of Educ. v. Brown, 600 U.S. 551, 561 (2023) (quoting Lujan, 504 U.S. at 572 n.7). But the litigant must have a “concrete interest that is affected by the deprivation of the claimed right.” Id. (internal quotation marks omitted). So “[o]nly a ‘person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.‘” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (quoting Lujan, 504 U.S. at 572 n.7). This Court has recognized that the “requirements of notice and comment prior to rulemaking” fit within a procedural-rights theory because they give persons with “concrete interests” affected by a regulation the “chance to argue to [an agency] that its policy is wrong before the policy is adopted.” Dismas Charities, 401 F.3d at 677. And “concrete” interests can include a plaintiff‘s “interest in continuing to provide services” that the agency action at issue stops. Id.
Given this framework, the States here have “concrete interests” that the “procedural requirements of notice and comment prior to rulemaking . . . certainly protect.” Id. The APA requires agencies to engage in “notice and comment” for legislative rules.18
If the APA‘s procedures are “applicable,” the States are in the same position as the plaintiff in Dismas Charities. To start, the APA‘s notice-and-comment procedures would have given the States a “chance to argue” that Education‘s Title IX “policy [wa]s wrong before the policy [wa]s adopted.” Id. at 677; see R. 1, PageID 24, ¶ 131 (“The Department‘s Interpretation and Fact Sheet are contrary to law and exceed the Department‘s statutory authority because Bostock‘s interpretation of Title VII‘s language is inapplicable to Title IX‘s materially different language.“);
And the States have an “interest in continuing to provide services” at public schools that separate programs and activities based on biological sex. Dismas Charities, 401 F.3d at 677.
In particular, the States seek to keep their “laws and policies, and established sex-separated restrooms, locker rooms, showers, residence halls, and other living facilities” that they made “in reliance on their understanding that Title IX” does “not prohibit those laws, policies, and practices.” R. 1, PageID
We next turn to the procedural-rights theory‘s second requirement: “prudential standing.” Id. at 674–77; see Nat‘l Credit Union Admin. v. First Nat. Bank & Tr. Co., 522 U.S. 479, 488 (1998) (interpreting
As to the first part, the APA‘s notice-and-comment rulemaking requirements were “intended to ‘assure fairness and mature consideration of rules of general application.‘” Dismas Charities, 401 F.3d at 678 (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969) (plurality opinion)). At the same time, they seek to “give those with interests affected by rules the chance to participate in the promulgation of the rules.” Id.
As to the second part, the States’ interests are among those that the APA was designed to protect. See Bangura, 434 F.3d at 499. The States “oversee and operate educational institutions and other educational programs and activities that receive federal funding and thus are subject to the requirements of Title IX.” R. 1, PageID 5, ¶ 15. Since the States are objects of the Documents, the notice-and-comment process was designed to give them an “opportunity to participate in and influence agency decision making at an early stage.” Dismas Charities, 401 F.3d at 678 (citation omitted). Not only that. Almost every Plaintiff State faces a “threatened injury to [the] enforcement” of its laws, which falls “within the zone of interests of” the APA and Title IX. Ohio ex rel. Celebrezze v. U.S. Dep‘t of Transp., 766 F.2d 228, 233 (6th Cir. 1985). Our Court has long acknowledged that a state has “standing to challenge [an agency‘s] regulation and undertake to vindicate its own law” when the state statute was “endangered and rendered uncertain by the formal position of” an agency that the state statute was “preempted.” Id.
As a result, the States’ interests fall “squarely within the zone of interests protected by the notice and comment requirements of the APA.” Dismas Charities, 401 F.3d at 679. The States therefore show a substantial likelihood of both constitutional and prudential standing for their procedural-rights claim.
In sum, the Department has adopted a new position on its enforcement of Title IX. Whether that position is a legislative
III.
Next up, reviewability. Reviewability is what it sounds like. It deals with whether federal courts can hear certain claims. The Department makes three arguments for why we
cannot review the Documents: (1) the Documents are not “final” agency action;19 (2) Title IX provides an adequate alternative remedy for the States, so reviewing their claims under the APA is improper; and (3) Title IX impliedly precludes pre-enforcement actions like this. We reject each of these arguments in turn.20A.
First, the Documents are “final” agency action. Courts, of course, can only review an agency action under the APA if it is “final.”
Our past cases put a gloss on this second condition. We ask: “Will the agency‘s action ‘impose liability’ on a regulated party, create legal rights [or obligations], or ‘mandate, bind, or limit other government actors’ in the future?” Arizona, 40 F.4th at 387 (quoting Parsons v. DOJ, 878 F.3d 162, 169 (6th Cir. 2017)). And we also ask whether the agency‘s action has a “‘sufficiently direct and immediate’ impact on the aggrieved party and a ‘direct effect on its day-to-day business.‘” Berry v. U.S. Dep‘t of Lab., 832 F.3d 627, 633 (6th Cir. 2016) (quoting Abbott Labs, 387 U.S. at 152). “Through it all, we will not overlook whether the agency‘s action puts a party to a ‘Catch-22,’ stuck between heavy compliance costs or feared liability, neither of which can be undone.” Arizona, 40 F.4th at 387 (quoting Air Brake Sys. v. Mineta, 357 F.3d 632, 645 (6th Cir. 2004)).
To figure out whether an agency action is binding, we look to the text of the agency action to see if it “evoke[s] binding legal effect.” Id. at 387–88. In other words, we look to the “definitive nature” of the legal conclusion. Id. at 388. We can also look to surrounding context—for example, how an agency has made use of the action or what it has said about it. See Texas v. EEOC, 933 F.3d 433, 441 (5th Cir. 2019).
Under this framework, we find that the Documents bind the Department to a legal position and create legal consequences. First, consider how the Documents bind the Department. The Notice of Interpretation announces that the Department will “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity” in a way that is “[c]onsistent with [its] analysis.” Enforcement of Title IX, 86 Fed. Reg. at 32639. This “supersedes and replaces any prior inconsistent statements made by the Department.” Id. The “Dear Educator” Letter tells the regulated entities that “Title IX‘s protection against sex discrimination encompasses discrimination based on sexual orientation and gender identity.” Letter to Educators, supra, at *1. And the Fact Sheet states that “[i]t is important to know that discrimination against students based on their sexual orientation or gender identity is a form of sex discrimination prohibited by federal law.” Fact Sheet, supra. Clearly, the Documents do more than express a “privileged viewpoint.” See Ctr. for Auto Safety v. Nat‘l Highway Traffic Safety Admin., 452 F.3d 798, 808 (D.C. Cir. 2006).
Simply put, the Department leaves itself no room to take the position that Title IX does not prohibit discrimination based on sexual orientation or gender identity. See Texas v. EEOC, 933 F.3d at 443 (“[B]y broadly condemning a [felon-hiring ban] policy or practice . . . the Guidance leaves no room for EEOC staff not to issue referrals to the Attorney General when an employer uses a categorical felon-hiring ban.“); Nat‘l Res. Def. Council v. EPA, 643 F.3d 311, 319-20 (D.C. Cir. 2011) (holding that EPA guidance was a final agency action because it withdrew agency discretion to refuse to find state emission-control plans non-compliant with EPA air quality standards for particular reasons). Agency actions such as this “legally bind an agency” and “cause legal consequences.” See Parsons, 878 F.3d at 167–68. The Documents tell the States how to avoid liability, thereby creating legal consequences. Take the Fact Sheet. After explaining that “[p]ublic elementary and secondary schools, as well as public and private colleges and universities, have a responsibility to investigate and address” discrimination because of a student‘s “perceived or actual sexual orientation or gender identity,” it lists “[e]xamples of the kinds of incidents . . . OCR can investigate.” Fact Sheet, supra. It further states that “OCR can also provide information to assist schools in meeting their legal obligations.” Id. (emphasis added). These examples are not simply enforcement “priorities.” Arizona, 40 F.4th at 389. These examples—as well as the Notice of Interpretation and “Dear Educator”
Similarly, the States allege that the Documents force them “either to alter [their] conduct, or expose [themselves] to potential liability.” Texas v. EEOC, 933 F.3d at 446 (citation omitted). We find this persuasive. For example, Tennessee law provides: “A student‘s gender for purposes of participation in a public middle school or high school interscholastic athletic activity or event must be determined by the student‘s sex at the time of the student‘s birth.”
So States will risk losing their federal funding if they continue to run their educational institutions in accordance with their own laws and policies.
By all accounts, the States’ obligation to investigate claims of sexual orientation and gender identity discrimination is new. The Department doesn‘t point to anything that establishes that it had a consistent practice of interpreting Title IX to include these types of injuries. See Rhea Lana, Inc. v. Dep‘t of Lab., 824 F.3d 1023, 1025, 1028 (D.C. Cir. 2016) (explaining that the document at issue in that case “created no new legal obligations” because it merely expressed a “longstanding view“). In fact, the Notice of Interpretation admits that “OCR at times has stated that Title IX‘s prohibition on sex discrimination does not encompass discrimination based on sexual orientation and gender identity.” Enforcement of Title IX, 86 Fed. Reg. at 32637. And the Department concedes that its “Title IX regulations have never directly addressed the application of Title IX to discrimination based on sexual orientation or gender identity.” Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41390, 41394 (July 12, 2022).
The Department disputes the characterization that the Documents amount to final agency action. It points to the fact that the Notice of Interpretation is called just that—an “Interpretation“—and argues that the Notice “does not itself determine the outcome in any particular case or set of facts.” Appellants Br. at 37. But the “particular label placed upon [it] is not necessarily conclusive, for it is the substance of what the [agency] has purported to do and has done which is decisive.” Detroit Edison Co. v. EPA, 496 F.2d 244, 249 (6th Cir. 1974) (quoting Columbia Broad. Sys. v. United States, 316 U.S. 407, 416 (1942)).
But, the Department says, the Documents were in effect for a year prior to the district court‘s injunction. And during that year, the Documents didn‘t have an immediate and significant impact on the States because courts did not rely upon or mention the Documents during that year. Even if that‘s true (and without knowing how many suits the Department of Justice initiated or was involved in during that year), we don‘t think that‘s where most of the “direct and immediate” impact would be. The first step on the road to enforcement action is investigation. Since the release of the Documents, the Department has opened dozens of gender discrimination investigations.21
Last, the Department‘s reliance on Parsons is misplaced. In Parsons, we found that an agency whose only congressionally delegated authority consisted of “collect[ing], analyz[ing], and disseminat[ing] gang activity information” and creating an annual report didn‘t have the power to bind government actors or generate legal consequences. 878 F.3d at 169–70. The Department points to this case to say that the Documents would only affect “private citizens considering whether to bring discrimination complaints.” Appellants Br. at 39–40. It is true that “harms caused by agency decisions are not legal consequences if they stem from independent actions taken by third parties.” Parsons, 878 F.3d at 168 (internal quotation marks omitted). But here, the Department bound itself to enforcing Title IX in a new, more demanding manner and has the power to initiate investigations based on alleged Title IX violations. The Department‘s new position also imposes increased investigatory responsibilities on Title IX recipients themselves, including the States. If attempts to secure “voluntary compliance” fail, the Department “will make a written finding that the recipient is in violation of Title IX,” and it can “begin administrative proceedings to suspend or terminate federal financial assistance.” Appellants Br. at 5 (citing
B.
Next, the Department argues that Title IX provides an adequate alternative remedy such that APA review is not appropriate. We hold that it does not.
The Department posits that the States have one alternative to pre-enforcement review under the APA: fail to conform to the Documents and risk an enforcement action (or referral to DOJ for further legal action), during which the States can argue that the Documents are procedurally flawed and should be set aside.
That‘s not adequate. As the Supreme Court has “long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of ‘serious criminal and civil penalties.‘” Hawkes, 578 U.S. at 600 (citing Abbott Labs, 387 U.S. at 153). In similar fashion, failing to conform with the Documents puts the States at risk of an often lengthy and arduous investigation and at risk of losing their federal funding through an enforcement proceeding. States “need not assume such risks while waiting for [an agency] to ‘drop the hammer.‘” Id. at 600 (citing Sackett v. EPA, 566 U.S. 120, 127 (2012)). The Department responds that the “default rule under the APA is that challenges to agency action are raised as defenses in an enforcement action.” Reply Br. at 16 (citing
And, in any event the Court did not answer the question presented in PDR Network, instead remanding to the court of appeals to answer two antecedent questions. Id. at 2056 (majority opinion). Still, four Justices concurring in the judgment noted that the “key aim” of its “revolution[ary“] decision in Abbott Labs “was to expand the opportunities for judicial review by allowing both facial, pre-enforcement challenges and as-applied challenges to agency action.” Id. at 2060 (Kavanaugh, J., concurring in the judgment).
Next, the Department argues that eventual de novo review in a federal court—
C.
Our last reviewability question is whether Title IX precludes pre-enforcement challenges to agency action. We find that it does not.
As a general rule, facial pre-enforcement challenges to agency action are permissible absent statutory preclusion of such review. Abbott Labs, 387 U.S. at 139–41. Congress may foreclose such review “explicitly” or “implicitly, by specifying a different method to resolve claims about agency action.” Axon Enter., Inc. v. FTC, 598 U.S. 175, 185 (2023). So our primary inquiry is to ask if the statutory scheme displays a “fairly discernible” intent to limit jurisdiction. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 216 (1994).
The Department does not argue that Title IX explicitly specifies a way to resolve the States’ suit. By all accounts, Title IX is silent regarding pre-enforcement challenges. So we look to whether Title IX implicitly precludes the States from bringing an APA pre-enforcement challenge. We find that it does not.
“Title IX contains no comprehensive enforcement scheme.” Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 723 (6th Cir. 1996). “The statute‘s only express enforcement mechanism,
This brings us to Title IX‘s judicial review provision. As we must, we start with the text:
Any department or agency action taken pursuant to section 1682 of this title shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to
section 1682 of this title, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with chapter 7 of Title 5, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of section 701 of that title.
The Department argues that this provision bars judicial review of enforcement actions until the enforcement proceeding is complete. But the text of that provision conflicts with the Department‘s position because it‘s phrased in permissive terms. It says that those aggrieved by an enforcement proceeding “may” sue under the APA. But it doesn‘t say that anyone “shall” or “shall not” do anything. And courts have explained in a similar context that it would be “troublingly counterintuitive to interpret [a statute‘s] permissive language as eliminating alternative routes to federal court review.” Cochran v. SEC, 20 F.4th 194, 201 (5th Cir. 2021), aff‘d and remanded sub nom. Axon Enter., Inc. v. FTC, 598 U.S. 175 (2023); see Dorris v. Absher, 179 F.3d 420, 429 (6th Cir. 1999) (“The use of the term ‘may’ in a statute is generally construed as permissive rather than as mandatory.“).23
Contrast the second provision‘s permissive language with the mandatory language of the first provision of
But even if Congress intended
This is because “not once has the OCR ever cut off funds to enforce Title IX.” R. Shep Melnick, The Strange Evolution of Title IX, National Affairs, (Summer 2018). Instead, matters are resolved “informal[ly].”
The point is that investigations, informal coercion, and compliance agreements are where Title IX is “litigated.” And the Department doesn‘t contend that matters resolved “informally” are subject to any sort of judicial review. Cf. Sackett v. EPA, 566 U.S. 120, 130–31 (2012) (“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.“).
Even so, the Department in effect proposes that the States invite enforcement proceedings and risk the loss of federal funding—perhaps by ignoring requests to examine their records, policies, and procedures during an investigation or compliance review, or negotiating in bad faith. But “we normally do not require plaintiffs to bet the farm by taking the violative action before testing the validity of the law.” Free Enter. Fund, 561 U.S. at 490 (cleaned up).
Simply put, this isn‘t a case where the States “can be injured” from the Documents “only in the course of being the subject of an enforcement proceeding.” Polyweave Packaging, Inc. v. Buttigieg, 51 F.4th 675, 683 (6th Cir. 2022). This is a “here-and-now injury” where the States’ injury as alleged has immediate effects on the States’ ordering of their own affairs. Axon, 598 U.S. at 191; see also Romeo Cmty. Schs. v. U.S. Dept. of Health, Educ., and Welfare, 438 F. Supp. 1021, 1028 (E.D. Mich. 1977). And the upshot of winning this claim is that the States shouldn‘t be subjected to administrative investigations or proceedings at all. A later court-of-appeals decision could not fully remedy that harm. See Axon, 598 U.S. at 194.
That brings us to the second question—are the States’ claims wholly collateral? The answer: Yes, for similar reasons to
And finally, this claim is “outside the [Department‘s] expertise.” Thunder Basin, 510 U.S. at 212. The States raise a “standard question[] of administrative law“—whether notice-and-comment rulemaking was required—a question wholly separate from “technical considerations of agency policy.” Free Enter. Fund, 561 U.S. at 491 (quoting Johnson v. Robison, 415 U.S. 361, 373 (1974); Axon, 598 U.S. at 194). Moreover, the Department puts forth no evidence of its expertise in administrative law. Though the Department “knows a good deal about [education] policy,” it is “ill suited to address” complicated administrative law questions. Axon, 598 U.S. at 194-95.
To sum it up, the States’ claims are reviewable. We are reviewing final agency action where there is no other adequate remedy at law, and Title IX does not preclude this APA pre-enforcement suit.
IV.
We must now decide whether the district court properly granted the preliminary injunction. In deciding whether to grant a preliminary injunction, we ask the following questions: (1) Has the plaintiff established “that he is likely to succeed on the merits?” (2) Would the plaintiff likely “suffer irreparable harm in the absence of preliminary relief?” (3) Does the “balance of equities tip[] in his favor?” And (4) does “the public interest” favor an injunction? Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “We review the district court‘s ultimate decision whether to grant a preliminary injunction for abuse of discretion, and we evaluate its legal determinations, including the likelihood of success on the merits, with fresh eyes,” i.e., de novo. Arizona, 40 F.4th at 381 (internal quotation marks omitted).
A.
We start with the first question. Are the States likely to succeed on their claim that the issuance of the Documents violated the APA? We think so.
The APA divides agency action, as relevant here, into three boxes: legislative
The Documents did not go through notice and comment. So if the Documents are legislative rules, the Department has not exercised its authority in a procedurally proper way, and a court must set aside the Documents.
This inquiry is familiar but abstruse. “Interpretive rule” is not defined by the APA, “and its precise meaning is the source of much scholarly and judicial debate.” Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 96 (2015). We do know that “the critical feature of interpretive rules is that they are ‘issued by an agency to advise the public of the agency‘s construction of the statutes and rules which it administers.‘” Id. at 97 (quoting Shalala v. Guernsey Mem‘l Hosp., 514 U.S. 87, 99 (1995)). Interpretive rules “clarify a statutory or regulatory term, remind parties of existing statutory or regulatory duties, or merely track preexisting requirements and explain something the statute or regulation already required.” Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014) (cleaned up). In short, they do not have the force and effect of law.
Legislative rules, on the other hand, do. They “impose new rights or duties and change the legal status of regulated parties.” Mann Constr., 27 F.4th at 1143. We ask: Does the new rule “effect[] a substantive regulatory change to the statutory or regulatory regime?” Mendoza, 754 F.3d at 1021 (internal quotation marks omitted).
For at least three reasons, the States are likely to succeed on their claim that the Documents amount to a legislative rule and therefore must be set aside.
First, the Documents carry out an express delegation of authority from Congress. The law at issue tells education institutions that “[n]o person . . . shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The “express statutory means of enforcement” of this general prohibition “is administrative.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280 (1998). “The statute directs federal agencies that distribute education funding to establish requirements to effectuate the nondiscrimination mandate.” Id. (citing
That brings us to our second point: the Documents impose new duties on the States. Put another way, “the disputed rule really adds content to the governing legal norms.” Syncor Int‘l Corp. v. Shalala, 127 F.3d 90, 96 (D.C. Cir. 1997). “Because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything about whether it intended that practice to be covered.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005).
And here, the Department says: “Public elementary and secondary schools, as well as public and private colleges and universities, have a responsibility to investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” Fact Sheet, supra (emphasis added). “When schools fail to respond appropriately, [the Department] can help by enforcing federal laws that protect students from discrimination. . . . OCR can also provide information to assist schools in meeting their legal obligations.” Id. (emphasis added).
Prior to the Documents, the States had no obligation to investigate these claims. According to the Department, they now do. And, the States say, this in turn obligates them to stop the enforcement of their own contrary laws and policies. Failure to comply comes with the risk of penalties, i.e., loss of funding,
On her way to the girls’ restroom, a transgender high school girl is stopped by the principal who bars her entry. The principal tells the student to use the boys’ restroom or nurse‘s office because her school records identify her as “male.” Later, the student joins her friends to try out for the girls’ cheerleading team and the coach turns her away from tryouts solely because she is transgender. When the student complains, the principal tells her “those are the district‘s policies.”
Fact Sheet, supra. This conflicts with the Department‘s current regulations on access to school facilities and athletics programs, which, on our read, permit schools to issue rules and policies in accordance with one‘s biological sex without accommodating gender identity. The relevant regulation says: “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
Without deciding any substantive merits questions, and applying any number of interpretive canons, we can all agree that phrases such as “one sex,” “the other sex,” and “each sex” could refer to biological sex. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69, 78, 170 (2012) (describing the ordinary-meaning canon, fixed-meaning canon, and presumption of consistent usage canon, respectively). And, at times, this has been the Department‘s position. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026, 30178 (May 19, 2020). (“Title IX and its implementing regulations include provisions that presuppose sex as a binary classification, and provisions in the Department‘s current regulations . . . reflect this presupposition.“).
“Because interpretive rules cannot effect a substantive change in the regulations, a rule that adopts a new position inconsistent with any of the [agency‘s] existing regulations is necessarily legislative.” Tenn. Hosp. Ass‘n v. Azar, 908 F.3d 1029, 1042 (6th Cir. 2018) (cleaned up).31 Basically, the regulations permit, but do not require, aid recipients to organize their athletics programs and facilities by biological sex. Schools could, for example, choose
The Department “seemed to recognize” that modification of its current regulations through notice-and-comment rulemaking was needed to effectuate its new reading of Title IX. Tenn. Hosp., 908 F.3d at 1045. Shortly before the district court issued a preliminary injunction in this case, the Department issued a proposed rule that, among other things, codifies: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” Nondiscrimination on the Basis of Sex in Education, 87 Fed. Reg. at 41571. And last year, it released a Notice of Proposed Rulemaking claiming sexual orientation and gender identity fit within the Title IX scheme in the athletics space. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams, 88 Fed. Reg. 22860 (April 13, 2023). The Department proposes to prevent categorical bans on transgender athletes participating on sports teams in alignment with their gender identities. See id.; U.S. Dep‘t of Educ., Fact Sheet: U.S. Department of Education‘s Proposed Change to its Title IX Regulations on Students’ Eligibility for Athletic Teams (April 6, 2023), https://www.ed.gov/news/press-releases/fact-sheet-us-department-educations-proposed-change-its-title-ix-regulations-students-eligibility-athletic-teams. This move on behalf of the Department “weigh[s] in favor” of finding that the interpretation is legislative. Tenn. Hosp., 908 F.3d at 1045.
In response to all this, the Department asserts that the Documents simply represent its “understanding of the longstanding sex discrimination prohibitions contained in [Title IX] and are merely intended to advise the public of the agency‘s construction of the statutes and rules which it administers.” Appellants Br. at 49 (internal quotation marks omitted). But the Department doesn‘t provide any support for the position that its understanding of Title IX is “longstanding.” And it can‘t be that the Documents “convey[]” the Department‘s “understanding” that discrimination based on sexual orientation and gender identity “have always been” prohibited forms of sex discrimination under Title IX. Guedes v. ATF, 920 F.3d 1, 19 (D.C. Cir. 2019).
To our understanding, the first time the Department articulated a stance like the one expressed in the Documents was in
What‘s more, the position that Title IX has always prohibited discrimination on the basis of sexual orientation and gender identity conflicts with the Department‘s view espoused in the Documents. The Documents purport “to clarify the Department‘s enforcement authority . . . in light of the Supreme Court‘s decision in Bostock,” published just a few years ago. Enforcement of Title IX, 86 Fed. Reg. at 32637. In other words, according to the Department, Bostock provided the legal grounding to extend an interpretation of a similar phrase in Title VII to Title IX.32 According to the Department, however, it can proceed to enforce its view of Title IX in the absence of the Documents, and this suggests the Documents are merely interpretive. Title IX, the Department says, would be the basis for any enforcement action, not the Documents.
Two responses. First, the Department seems to suggest that it exercised enforcement discretion by not asserting authority over the States in the past and is therefore simply reversing that discretionary decision. But that is just another way of saying that the Documents amount to a mere policy statement. We‘ve already determined that the Documents aren‘t policy statements because they bind the Department to a position that the States have an obligation to investigate
sexual orientation and gender identity discrimination claims and to provide certain accommodations—all because
Second, if this were all it took, we wouldn‘t have cases like Mann Construction. There, a statutory provision permitted the IRS to penalize the failure to provide information concerning “listed transactions.” Id. at 1142. The IRS issued a notice that “designate[d] certain employee-benefit plans . . . as listed transactions.” Id. After the IRS enforced its rule against a taxpayer, it too could have said that, in some sense, the statute, not the notice was the authority for the enforcement action. Yet we found that the notice was a legislative rule that had impermissibly “skipp[ed] the notice-and-comment process.” Id. at 1141. So we don‘t find this argument convincing.
For these reasons, we believe the States are likely to succeed in their claim that the Documents amount to a legislative rule and therefore should be set aside.
B.
We next ask whether the States are “likely to suffer irreparable harm in the absence of preliminary relief.” Platt v. Bd. of Comm‘rs on Grievances & Discipline, 769 F.3d 447, 453 (6th Cir. 2014). They are. Absent an injunction, the States will be forced to comply with the Department‘s new regulations, contrary to their own policies. And they are “likely to incur unrecoverable compliance costs in the absence of a preliminary injunction,” and the federal government‘s “sovereign immunity typically makes” such losses irreparable. Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). Moreover, the States with conflicting laws will be hampered in their ability to enforce their laws, and the States will continue to face pressure to change their laws to avoid legal consequences. See Abbott v. Perez, 585 U.S. 579, 602 n.17 (2018) (“[T]he inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State.“); Thompson v. DeWine, 976 F.3d 610, 619 (6th Cir. 2020) (“Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012))). “[I]nvasions of state sovereignty . . . likely cannot be economically quantified, and thus cannot be monetarily redressed,” and as such constitute irreparable harm. Kentucky v. Biden, 23 F.4th at 611 n.19. Thus, the second factor favors a preliminary injunction.
C.
The last two factors—the harm to the opposing party and the public‘s interest—“merge” because the “Government is the opposing party” in this case. Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020)
D.
In response, the Department argues that even if all four factors support a preliminary injunction, the injunction is too broad. Not so.
To be sure, “federal courts should not issue relief that extends further than necessary to remedy” plaintiffs’ injuries. Kentucky v. Biden, 57 F.4th at 556-57. In similar pre-enforcement challenges to federal regulations, we have expressed concern over “nationwide injunctions,” which “seem to take the judicial power beyond its traditionally understood uses” by “permitting district courts to order the government to act or refrain from acting toward nonparties.” Arizona v. Biden, 31 F.4th at 483-84 (Sutton, C.J., concurring). And we have indicated that even “geographically limited” injunctions extending to non-parties raise “substantial questions about federal courts’ constitutional and equitable powers.” Kentucky v. Biden, 57 F.4th at 556-57.
But rather than granting a nationwide injunction, the district court here issued relief limited to only the Plaintiff States. And each of the twenty plaintiff states has shown a substantial likelihood that it has standing under both a proprietary and a procedural-rights theory, as explained above. So the preliminary injunction is “no more burdensome to the defendant than necessary” to prevent the irreparable harm identified. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Kentucky v. Biden, 57 F. 4th at 557.
Nonetheless, the Department claims that the district court abused its discretion because, for some states, the law of the relevant circuit indicates that discrimination based on gender identity or sexual orientation is unlawful sex discrimination. But the cases that the Department says conflict with the preliminary injunction don‘t. Some deal exclusively with
Yes, courts ordinarily should “not award injunctive relief that would cause substantial interference with another court‘s sovereignty.” United States v. AMC Ent., Inc., 549 F.3d 760, 770 (9th Cir. 2008) (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952)). But here, as the States point out, “this preliminary injunction turns on whether the challenged documents complied with the
As of now, no court has ruled on the lawfulness of the Documents—not even the district court below because we are in the preliminary-injunction phase. So there is no conflict with another court‘s jurisdiction.
For the reasons above, we AFFIRM.
V.
DISSENT
BOGGS, Circuit Judge, dissenting. I would vacate the preliminary injunction and dismiss this case for lack of standing. In my view, the Interpretation, “Dear Educator” Letter, and Fact Sheet (collectively, “the Documents“) are interpretative rules or policy statements, which are generally not final for purposes of judicial review under the
Conditional phrases like “depending on the facts” and non-exhaustive lists of “examples” are “telltale signs . . . of a nonbinding policy statement, not of reviewable agency action.” Arizona v. Biden, 40 F.4th 375, 387-88 (6th Cir. 2022). And the Documents are chock full of
this type of
In this important respect, the Documents differ from the agency actions considered in Kentucky v. Biden, 23 F.4th 585, 594-95 (6th Cir. 2022), and Biden v. Nebraska, 143 S. Ct. 2355, 2366-67 (2023), upon which the majority relies to craft its “proprietary-interest theory” of state standing. In Kentucky, we held that states had standing to challenge federal guidance “mandating that the employees of federal contractors . . . become fully vaccinated against COVID-19.” 23 F.4th at 589 (emphasis added). If an employee was working in a “covered contract,” the guidance required that employee to be vaccinated against COVID-19. Ibid. Similarly, in Nebraska, the Supreme Court entertained a challenge by several states to the Secretary of Education‘s student-loan-forgiveness plan. 143 S. Ct. at 2362. The Secretary‘s plan identified specific and quantifiable requirements for qualifying loans—“[f]or borrowers with an adjusted gross income below $125,000 in either 2020 or 2021 who have eligible federal loans, the Department of Education will discharge the balance of those loans in an amount up to $10,000 per borrower.” Id. at 2365 (emphasis added). Unlike the Documents at issue here, these actions involved no exercise of discretion by agency staff. If an employee was covered, she was required to get a vaccine. If a borrower had eligible federal loans, the Department would discharge up to $10,000 of his loan balance. Here, though, the Department must still decide whether each filed complaint warrants an investigation and, ultimately, whether any complained-of action constitutes sex discrimination. This obligation is based on
In School of the Ozarks v. Biden, the Eighth Circuit followed a similar rationale to hold that a college did not have standing to challenge a memorandum by the Department of Housing and Urban Development that directed the Department‘s Office
The majority finds School of the Ozarks “questionable,” but I do not understand why. True, Ozarks concerned an internal agency memorandum, but there is no rule that an agency‘s statements are mere interpretations of a statute only if they are not made public. To the contrary, regulated entities and the public alike benefit when an agency announces how it interprets and intends to enforce a statute. Hoctor v. U.S. Dep‘t of Agric., 82 F.3d 165, 167 (7th Cir. 1996). I disagree that it is “not at all clear in this case” that “the agency could still get to the same outcome by interpreting the underlying statute in a way that tracks the documents.” Ante at 11 n.10. It seems perfectly clear that it could do so because the Documents only do what agency staff do on a case-by-case basis—authorize a particular investigation and potentially support a finding of sanctionable conduct.
Even so, the majority asserts that the Documents are binding because “the Department leaves itself no room to take the position that
In particular, the Documents say nothing about the most contested and controversial aspect of what is phrased as “gender identity” or “transgender status.” Thus, in adding these categories to standard harassment analysis “on the basis of sex,” it is fairly easy to see how the perception of these statuses would work out. Consider the classic high-school harassment activity of stuffing the victim in their locker. See, e.g., Lean on Me (Norman Twain Productions 1989). In many circumstances, if this is done to females but not to males who are similarly perceived as “dweebs” or members of the chess club, this would be actionable student-on-student harassment. See, e.g., S.C. v. Metro. Gov‘t of Nashville, 86 F.4th 707, 714 (6th Cir. 2023) (explaining that, under
However, in the most controversial and fraught areas of access to sex-separated private spaces and athletic teams (which are explicitly permitted under
Thus, one could come up with a typology of steps in a “transition” that we have no idea of when or how the Department might deal with. For example:
- A simple declaration of transgender status, perhaps by a change of name or demand for grammatical adjustment.2
- Modest changes in appearance, as by clothing choices and other cosmetic (either by definition or by adjustment of substances to alter appearance) choices.
- Application or adjustment of hormones or other drugs that might alter a person‘s manner of presentation.
- Physical and surgical alterations, such as castration or mastectomy.
- Surgical alterations or implementations to resemble the genitals of a different sex.
All of these could be seen as simply a variety of methods of changing, in greater or lesser degree, the way in which human beings, whether biologically male or female, choose to “present” themselves in personal interaction or general society. See generally Erving Goffman, The Presentation of Self in Everyday Life (1959). The degree to which a state needs to adjust to or fear departmental policy is not clear, as would also be the case in the absence of the Documents.
I agree that the Documents are intended to have in terrorem effect on states and school districts such as the plaintiffs. They clearly can be interpreted as desiring a change in voluntary policies by recipients of federal funding. However, the same could be said of a major Presidential address or a Secretarial campaign targeting
In order to actually have operational consequences beyond those stemming from the statute itself, what would be needed are specific regulations, promulgated after notice and comment. And this is in fact what the Department has done to some extent, in regulations finalized recently. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33474 (Apr. 29, 2024). Interestingly, these regulations, not directly at issue here, though they well may be the subject of separate litigation, do not directly address the controversial areas above.
To be blunt, the issue that will need to be decided at some point in other venues and litigation is whether it is “discrimination” to treat people who have XY chromosomes, who have a penis or once had a penis, or who can or once could produce sperm, just the same as one treats all others in those categories, or whether it is instead “discrimination” to treat the very same people the same way, or to refuse to treat the very same people differently, if they choose to declare or present at some point along the possible continuum laid out above.3
The Documents, which again only explain the Department‘s interpretation at a high level of generality, do not answer this core question or many others. To hold, as the majority does, that such interpretative actions “legally bind an agency” implies that a person alleging discrimination based on sexual orientation or gender identity would be entitled to sue the Department if it or a defendant did not investigate that person‘s complaint. And this cannot be reconciled with the core principle of administrative law that “enforcement priorities are ‘committed to agency discretion by law.‘” Arizona, 40 F.4th at 389 (quoting
The majority makes several potentially extravagant claims. It states that “winning” this litigation means “that the States shouldn‘t be subjected to administrative investigations or proceedings at all.” Ante at 32. Does this mean that injunctive relief is available against any investigation into any complaint that even mentions sexual orientation or gender identity? It concludes that the Documents—which only discuss when the Department might investigate a complaint—“legally bind” the Department. Ante at 22. Does this mean that if the injunction below is reversed, a student could sue the Department if it does not investigate the student‘s complaint? That seems an extravagant proposition—but a necessary implication of the majority‘s position.
The majority also claims that the inquiry into whether a rule is binding is actually not “helpful” to determine whether the rule is interpretative or legislative. Ante at 35 n.30 (citing Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1111 (D.C. Cir. 1993)). This is a puzzling assertion. Whether a rule is binding is a key inquiry. See, e.g., Perez, 575 U.S. at 97 (“Interpretative rules ‘do not have the force and effect of law and are not accorded that weight in the adjudicatory process.‘” (quoting Shalala v. Guernsey Mem‘l Hosp., 514 U.S. 87, 99 (1995))); Nat‘l Mining Ass‘n v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014) (“An agency action that sets forth legally binding requirements for a private party to obtain a permit or license is a legislative rule. . . . [A]n agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties, is an interpretive rule.“); Am. Tort Reform Ass‘n v. OSHA, 738 F.3d 387, 395 (D.C. Cir. 2013) (interpretative rules “do not establish a binding norm“).
In any event, the Department can easily take the position that ”
To be sure, this rescission is not at issue here. But as the majority correctly points out, we can “look to surrounding context—for example, how an agency has made use of the action or what it has said about it.” Ante at 22. And this history suggests that the Department has consistently considered itself free to rescind actions such as the Documents at any point without warning or notice-and-comment procedures. In that sense, these Documents are no different than a speech given by the Secretary or the President, announcing that henceforth the Department will take a particular litigating position in enforcing
Put simply, the Documents explain legal obligations; they do not create them. They consistently speak of what the Department believes
Consider the analogous example of a court interpreting a statute. As the Supreme Court has explained, “[o]ne would not normally say that a court ‘amends’ a statute when it interprets its text. So too can an agency ‘interpret’ a regulation without ‘effectively amend[ing]’ the underlying source of law.” Perez, 575 U.S. at 103. The same logic applies to an agency that interprets a statute. We do not say that an agency “amends” a statute when it announces how it interprets the statute‘s text. So when the Department says, for example, that it will “provide information to assist schools in meeting their legal obligations,” Fact Sheet, p. 1, those legal obligations—and any others related
Nonetheless, the majority claims that the Documents force the States into a supposed catch-22 where they must comply with federal law or lose federal funding. But the choice faced is neither Scylla nor Charybdis. There is always a choice between following the law and being punished. Here, the alleged liability—losing federal funding—is speculative at best. The majority admits that “not once has the OCR ever cut off funds to enforce
The majority also claims that the Documents are legislative because they stem from Congress‘s delegation of rulemaking authority. Ante at 36. But the fact that the Department has this rulemaking authority—and has exercised it in the past to promulgate legislative rules—does not prove that it did so here. To conclude otherwise would mean that Congress gelds an agency by giving it rulemaking authority, making it unable to create simple interpretations. That is, an agency could issue only legislative rules and could never issue interpretative rules or general statements of policy. Numerous cases, as well as the
These realities reveal that the Documents are neither binding in any meaningful sense nor the source of any legal obligations imposed on the States. Thus, they are not final for purposes of judicial review under the