State of Tenn. v. Dep't of Educ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0132p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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STATE OF TENNESSEE; STATE OF ALABAMA; STATE OF ALASKA;

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STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA;

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STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS;

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COMMONWEALTH OF KENTUCKY; STATE OF LOUISIANA; STATE OF

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MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF

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NEBRASKA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF

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SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF WEST

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VIRGINIA,

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Plaintiffs-Appellees, │

> No. 22-5807

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ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; A.F., a │

minor, by Sara Ford, her mother, │

Intervenors-Appellees, │

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v. │

│

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DEPARTMENT OF EDUCATION; MIGUEL CARDONA, in his official │

capacity as Secretary of Education; EQUAL EMPLOYMENT │

OPPORTUNITY COMMISSION; CHARLOTTE A. BURROWS, in her │

official capacity as Chair of the Equal Employment Opportunity │

Commission; U.S. DEPARTMENT OF JUSTICE; MERRICK B. │

GARLAND, Attorney General, in his official capacity as Attorney │

General of the United States; KRISTEN CLARKE, in her official │

capacity as Assistant Attorney General for Civil Rights at the │

United States Department of Justice, │

Defendants-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.

No. 3:21-cv-00308—Charles Edward Atchley, Jr., District Judge.

Argued: April 26, 2023

Decided and Filed: June 14, 2024

Before: BOGGS, LARSEN, and NALBANDIAN, Circuit Judges.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 2

_________________

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 CALIFORNIA ATTORNEY

GENERAL, Los Angeles, California, Timothy Belz, OTTSEN LEGGAT & BELZ, LC, St.

Louis, Missouri, Deborah J. Dewart, Hubert, North Carolina, Gary M. Lawkowski, DHILLON

LAW GROUP, Alexandria, Virginia, Christopher Mills, SPERO LAW LLC, Charleston, South

Carolina, Celia Howard O’Leary, SOUTHEASTERN LEGAL FOUNDATION, Roswell,

Georgia, William E. Trachman, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood,

Colorado, Peter N. Kirsanow, BENESCH, FRIEDLANDER, COPLAN & ARONOFF, LLP,

Cleveland, Ohio, Kerry Lee Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte,

Michigan, Talmadge Butts, FOUNDATION FOR MORAL LAW, Montgomery, Alabama,

William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Ryan D. Walters, OFFICE OF

THE TEXAS ATTORNEY GENERAL, Austin, Texas, Lauren Adams Bone, JACKSON BONE

LLP, Washington, Wisconsin, for Amici Curiae.

NALBANDIAN, J., delivered the opinion of the court in which LARSEN, J., concurred.

BOGGS, J. (pp. 45–53), delivered a separate dissenting opinion.

_________________

OPINION

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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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 3

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.

Title IX of the Education Amendments of 1972 prohibits sex discrimination in education

programs or activities receiving federal financial assistance. A watershed enactment, Title IX

contains two core provisions. The first prohibits discrimination: “No person in the United States

shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). The second relates to enforcement, authorizing agencies that

award federal financial assistance to education programs to “issu[e] rules, regulations, or orders

of general applicability,” ensuring that aid recipients adhere to § 1681’s mandate. Id. § 1682.

One such agency is the Department of Education.

In the first few decades of Title IX’s existence, the Department of Education—and its

predecessor-in-enforcement, the Department of Health, Education, and Welfare—primarily

issued regulations covering hiring, admissions, and athletics. Helped by the Supreme Court, the

Department then extended § 1681’s anti-discrimination mandate to cases of sexual harassment

and retaliation. See Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75 (1992) (extending

Title IX to sexual harassment); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–74

(2005) (extending Title IX to retaliation).

1We are aware that the Federal Register recently published a final rule amending the Department of

Education’s Title IX regulations, which go into effect August 1, 2024. See U.S. Dep’t of Educ., Final Rule:

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,

89 Fed. Reg. 33474 (Apr. 29, 2024). This new rule does not moot this case for two reasons. First, the final rule

does not go into effect until August 2024. Second, the final rule does not cover everything that is covered by the

documents, like housing and athletics. So even once the rule goes into effect, it will not change the fact that the laws

of the Plaintiff States will still conflict with the Department’s policies in these areas.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 4

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.” Id.

But the Department made clear that “Title IX does not prohibit discrimination on the basis of

sexual orientation.” Id.2

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

2The Department’s new sexual harassment rules in 2020 did not disturb this finding. Nondiscrimination on

the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026,

30178–80 (May 19, 2020) https://www.govinfo.gov/content/pkg/FR-2020-05-19/pdf/2020-10512.pdf.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 5

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 2021), https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-

01082021.pdf. The memorandum said that “the Department’s long-standing construction of the

term ‘sex’ in Title IX” is that it means “biological sex, male or female.” Id. at 2.

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.” Id. But it explained that, given

Bostock and Title IX’s similarities to Title VII, the Department will now “fully enforce Title IX

to prohibit discrimination based on sexual orientation and gender identity in education programs

and activities that receive Federal financial assistance from the Department.” Id. at 32639.

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.” Id. at *2.

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 6

law.” Id. The Fact Sheet also provides examples of what types of claims the Department may

investigate. To name a few, these claims include preventing a “‘transgender high school girl’

from using the ‘girls’ restroom,’” “preventing a ‘transgender high school girl’ from ‘trying out

for the girls’ cheerleading team,’” and “failing to use a transgender student’s preferred name or

pronouns.” R. 1, Compl., PageID 13–14 (quoting R. 1-4, Exhibit C, PageID 73).

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.”

Id.

On August 30, 2021, twenty states3 sued, challenging the legality of these Documents.4

The Plaintiff States operate educational programs and activities that receive federal funding and

are thus subject to Title IX’s requirements. The States allege that the Department’s Documents

are procedurally and substantively unlawful under the Administrative Procedure Act (APA),

Title IX, and the U.S. Constitution.

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

3Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi,

Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia.

4In district court, the States also challenged the Equal Employment Opportunity Commission’s issuance of

a “technical assistance document.” On appeal, the Department no longer defends the merits of that document

because another court has set it aside nationwide. See Texas v. EEOC, 633 F. Supp. 3d 824, 847 (N.D. Tex. 2022).

Given that the Department has abandoned that aspect of its appeal, we won’t review the issue. See Robinson v.

Jones, 142 F.3d 905, 906 (6th Cir. 1998); Nichols v. United States, 285 F.3d 445, 447 n.1 (6th Cir. 2002).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 7

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. Id.

To have standing, the States must establish an injury that is (1) actual or imminent as well as

concrete and particularized, (2) traceable to the Documents, and (3) likely to be redressed by a

favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

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.

5The district court did not address the likelihood of success of the States’ other claims. We similarly don’t

address the likelihood of success of those other claims today.

6Arizona did not join the other nineteen states in briefing on appeal but is still a plaintiff in this suit. Given

that “an appellee doesn’t even have to file a response brief,” Anderson v. Knox County, Case No. 22-5280, 2023 WL

4536078, at *7 (6th Cir. July 12, 2023) (citing Fed. R. App. P. 31(c); In re Hollis, 810 F.2d 106, 107 (6th Cir.

1987)), we still address the States’ claims that involve Arizona.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 8

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

7A state’s proprietary interests are distinct from its sovereign interests. A “proprietary” interest is the right

of a state to run its own schools, universities, hospitals, etc., much like the proprietor of a private school or hospital.

See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). But a state’s sovereign

interests are unique to states as separate sovereigns, for these are the rights of the sovereign to regulate others.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 9

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 20 U.S.C. § 1682.

This fear is not unfounded. It comes directly from the text of the Documents. The

Department says it “will fully enforce Title IX to prohibit discrimination based on sexual

orientation and gender identity” in a way that is “[c]onsistent with the analysis” in the

Documents. Enforcement of Title IX, 86 Fed. Reg. at 32639. The Department also indicates

that the position expressed in the Documents’ is now the “interpretation” moving forward, while

noting that this agency action “supersedes and replaces any prior inconsistent statements made

by the Department.” Id. Not to mention, both the regulation and “Dear Educator” Letter

reiterate that the Department “will fully enforce Title IX to prohibit discrimination based on

sexual orientation and gender identity.” Id.; Letter to Educators, supra, at *2.

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 20 U.S.C. § 1682; see 34 C.F.R. § 100.8(a). And aside from a loss of

8At argument, the Department’s counsel stated that it has not and would not enforce the Documents in

enforcement actions against the Plaintiff States. And on that reasoning, the Department argued that “any harm that

the states have suffered is not traceable to these documents.” Oral Argument at 9:55. The Supreme Court rejected a

similar argument in West Virginia v. EPA, 597 U.S. 697 (2022). There, the government argued that any

“possibility” of an injury was “eliminated” because the “EPA informed the Court of Appeals that it does not intend

to enforce the Clean Power Plan.” Id. at 719. The Court recognized this maneuver for what it was: an attempt to

moot the case. Id. It was a voluntary cessation argument in disguise. Id. at 720. Courts are rightly skeptical about

taking a party at its word that it will not enforce something when enforcement is within its discretion.

Indeed, it is “well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of the practice.’” Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289

(1982)). Otherwise, “courts would be compelled to leave the defendant free to return to his old ways.” Id. (cleaned

up). A defendant bears the burden of establishing “that a once-live case has become moot.” West Virginia, 597 U.S.

at 719. And that burden is “heavy” where, as here, the “only conceivable basis for a finding of mootness in the case

is the respondent’s voluntary conduct.” Id. (quoting Friends of the Earth, 528 U.S. at 189). The Department’s

“mootness argument boils down to its representation that [it] has no intention of enforcing” its policy. Id. at 720.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 10

funding, the Department can take any other means authorized by law, such as referring the

matter to the Department of Justice. 34 C.F.R. § 100.8(a).

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 will “continue” an action that “allegedly violates the law.” Kentucky v.

Biden, 23 F.4th at 602 (citation omitted) (reasoning that a plaintiff established imminence by

showing a history of bidding on contracts that would allegedly violate a new mandate and by

asserting that it would “likely” bid on contracts in the future).

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

So “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.

701, 719 (2007) (internal quotation marks omitted). And given that the Department “vigorously defends” the

legality of the Documents, it’s not “clear.” See id.

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sexual orientation or gender identity.” R. 1-4, PageID 73. And the Department tells schools that

these are “legal obligations” that they must “meet[].” Id. The schools previously didn’t have to

investigate scenarios which they do not consider to be sex discrimination, but now they do.

These harms aren’t just imminent; they apparently require action now. So we need not wait and

see whether any actual conflict arises—as the Department would have us do.9

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. Id. And, for the same reasons, the States’ injuries will be redressed by

a favorable ruling enjoining the enforcement of the Documents against them.10

9It is true that “many federal constitutional rights are as a practical matter asserted typically as defenses to

state-law claims, not in federal pre-enforcement cases like this one.” Whole Woman’s Health v. Jackson, 595 U.S.

30, 49–50 (2021). But the harm here is not a “possibility.” Id. at 49. Nor is it based on a “highly attenuated chain

of possibilities.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013). Rather, as explained, the States make a

substantial showing that the Department will “fully enforce” the new position—and only that position. Enforcement

of Title IX, 86 Fed. Reg. at 32639. So the injury here is “certainly impending.” Clapper, 568 U.S. at 410.

10In challenging traceability and redressability, the Department argues that the injuries stem from Bostock

and Title IX, not the Documents. The Department cites School of the Ozarks v. Biden in support of its argument that

the states have failed to establish traceability and redressability. 41 F.4th 992 (8th Cir. 2022). That case, however,

does not answer the question before us. In Ozarks, the challenger “failed to show that enjoining officials from

implementing” an “internal” agency directive “would redress any injury allegedly arising” from the document

“because the agency retain[ed] the authority and responsibility to carry out the same enforcement activity based on

the statute alone.” Id. at 1001. The Ozarks court reasoned that the U.S. Department of Housing and Urban

Development would still have to “investigat[e] all complaints of sex discrimination . . . including complaints of

discrimination because of gender identity or sexual orientation.” Id. And it added that the agency “must consider

the meaning of the Fair Housing Act in light of Bostock and its interpretation of similar statutory language.” Id.

Ozarks’s logic is questionable. It hinges on the premise that even if the agency didn’t use its documents,

the agency could still get to the same outcome by interpreting the underlying statute in a way that tracks the

documents. But that’s not at all clear in this case. Unlike in School of the Ozarks, the Documents here are not

internal agency memoranda. Instead, they tell regulated entities, including the States, that they must take affirmative

steps to investigate forms of sex discrimination that they previously were under no obligation to pursue. Failure to

do so puts them at risk of losing their funding.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 12

Taken together, the States are trapped between choosing to enforce state laws or

receiving federal funds, all while having to investigate gender-identity and sexual-orientation

discrimination (unlike before). Thus, the injuries here are “fairly traceable to the challenged

action of the defendant,” and “a favorable decision” will redress these injuries. Lujan, 504 U.S.

at 560–61 (internal quotation marks omitted).

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 at 598 (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

11See Alfred L. Snapp, 458 U.S. at 601 (recognizing that interference with a state’s sovereign “power to

create and enforce a legal code” is sufficient to establish Article III standing); Missouri v. Holland, 252 U.S. 416,

431 (1920) (exercising jurisdiction over a case because Missouri’s lawsuit “is a reasonable and proper means to

assert the alleged quasi sovereign rights of a State” against federal regulation); Yellen, 54 F.4th at 336 (concluding

that states had standing from threats to their “enacted or planned . . . tax cuts” because of their “powerful sovereign

prerogative under federalism principles to control their own internal taxation policies”); Saginaw County v. STAT

Emergency Med. Servs., Inc., 946 F.3d 951, 957 (6th Cir. 2020) (noting that Article III standing can be met if a state

faces “some tangible interference with its authority to regulate or to enforce its laws”); Ohio ex rel. Celebrezze v.

U.S. Dep’t of Transp., 766 F.2d 228, 233 (6th Cir. 1985) (holding that a state had standing to “vindicate its own

law” that was “endangered and rendered uncertain by the formal position of [an agency] that the [state] statute is

preempted”); South Dakota v. Dole, 483 U.S. 203, 205 (1987) (allowing a state to bring a Spending Clause

challenge to a federal statute burdening continued enforcement of a state law).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 13

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.” Id. at 289. As James Wilson famously explained,

the Constitution’s federalist structure ensured that, for state governments, “every thing which is

not given, is reserved.” James Wilson’s State House Yard Speech October 6, 1787, in 1

Collected Works of James Wilson 171, 171–76 (Kermit L. Hall & Mark David Hall eds., 2007).12

This meant that the “powers reserved to the several States [would] extend to all the objects

which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people,

and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, at

289.13

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,

12This speech was republished in thirty-four newspapers across every state except Delaware and North

Carolina. J. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 144 n.36 (1996).

13It is worth mentioning that the ability to pass and enact laws has been a cornerstone of legislatures’

powers dating back at least to the English Bill of Rights of 1689, which denounced—as one of its chief

complaints—the King “Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the

Execution of Lawes without Consent of Parlyament.” An Act Declareing the Rights and Liberties of the Subject and

Setleing the Succession of the Crowne (Bill of Rights), 1 W. & M. 2, c. 2 (1689). The power of a legislature to

enact its own legislation proved so important that when James Madison “proposed giving the national government

an unlimited veto over all state laws,” the idea was rejected, and the convention instead adopted a system that

retained state sovereignty over its own legislation—a plan in which “most framers agreed that the scope of national

lawmaking would remain modest,” and the “most numerous objects of legislation” would “belong to the states.”

Rakove, supra, at 168–69, 179.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 14

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, and these will

have the same disposition towards the [federal] government.” The Federalist No. 28, at 176–77

(Alexander Hamilton); see also id. at 177 (“[T]he State Governments will, in all possible

contingencies, afford complete security against invasions of the public liberty by the National

authority.”). So even if the federal government “invaded” the rights of the people, the people

could still “make use of” the state government “as the instrument of redress.” Id. Put simply,

the “different governments will control each other, at the same time that each will be controlled

by itself.” The Federalist No. 51, at 320 (James Madison). Indeed, it was understood that the

federal government may not just be “the sword” in all cases, but “sometimes be appealed to as

the arbiter of [states’] differences.” The Federalist No. 7, at 56 (Alexander Hamilton).

Important here, among the sovereign “powers” that the Constitution “reserved to the

States” was the ability to regulate the education of their citizens. U.S. Const. amend. X; see

United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring) (“[I]t is well

established that education is a traditional concern of the States.”). Nothing in the Constitution

“was designed to interfere with the power of the state, sometimes termed its police power, to

prescribe regulations to promote the . . . education . . . of the people.” Barbier v. Connolly,

113 U.S. 27, 31 (1884); see Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (“By and large,

public education in our Nation is committed to the control of state and local authorities.”); San

Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 55 (1973) (“We are unwilling to assume for

ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in

50 States.”). And the states’ strong interest in regulating education hasn’t changed. See, e.g.,

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 15

Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most

important function of state and local governments.”).14

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

14This is not to suggest that an injury based on a state’s sovereign interests is cognizable only when it

impacts an area “traditionally” regulated by the states, such as education. States can suffer an injury affecting their

sovereign interests even when they regulate beyond “traditional” areas of state regulation. See, e.g., Celebrezze, 766

F.2d at 229 (6th Cir. 1985) (involving preemption of an Ohio statute that “requires prenotification of shipment into

or through the State of any large quantity of special nuclear material or by-product material”).

But we also do not suggest that states suffer an injury to their sovereign interests any time the federal

government purports to regulate in an area of “traditional” state concern, such as education. Such an assertion

would likely run headlong into the Mellon bar. See Massachusetts v. Mellon, 262 U.S. 447, 482 (1923).

15Multiple states do not show a state policy that conflicted with the Documents at the time the States filed

their complaint. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) (“The existence of federal

jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.”). So although these states can

show a likelihood that they have standing under procedural-rights and proprietary-interest theories, it’s unlikely that

they have standing under a sovereign-interest theory.

But, even if these states couldn’t make a showing of standing under any theory, the states could stay in this

suit thanks to the one-party rule. Rumsfeld v. Forum for Acad. & Inst’l Rts., Inc., 547 U.S. 47, 52 n.2 (2006).

Alternatively, because no court would have made a “final judgment on the merits” for these states, Montana v.

United States, 440 U.S. 147, 153 (1979), they could bring suit again without res judicata concerns—asserting on the

second go-around that they have standing based on new laws. See Ariz. Rev. Stat. § 15-120.02(B) (“Athletic teams

or sports designated for ‘females’, ‘women’ or ‘girls’ may not be open to students of the male sex.”); Ga. Code Ann.

§ 20-2-316(c)(1)(E)(v) (amended 2022) (“If the athletic association determines that it is necessary and appropriate to

prohibit students whose gender is male from participating in athletic events that are designated for students whose

gender is female, then the athletic association may adopt a policy to that effect; provided, however, that such policy

shall be applied to all of the athletic association’s participating public high schools.”); Ind. Code § 20-33-13-4(b)

(“A male, based on a student’s biological sex at birth in accordance with the student’s genetics and reproductive

biology, may not participate on an athletic team or sport designated under this section as being a female, women’s,

or girls’ athletic team or sport.”); Kan. Stat. Ann. Ch. 13, § 3(b) (amended 2023) (“Athletic teams or sports

designated for females, women or girls shall not be open to students of the male sex.”); Ky. Rev. Stat. Ann. §

158.189(3) (“Those policies shall, at a minimum, not allow students to use restrooms, locker rooms, or shower

rooms that are reserved for students of a different biological sex.”); S.B. 44 Reg. Sess. (La. 2022) (requiring “that

schools designate intercollegiate and interscholastic athletic teams according to the biological sex of the team

members” and “that teams designated for females are not open to participation by biological males”); Mo. Rev. Stat.

§ 163.048.3(1) (amended 2023) (“[N]o private school, public school district, public charter school, or public or

private institution of postsecondary education shall allow any student to compete in an athletics competition that is

designated for the biological sex opposite to the student’s biological sex.”); Ohio Rev. Code § 3313.5320(B)

(amended 2024) (“No school, interscholastic conference, or organization that regulates interscholastic athletics shall

knowingly permit individuals of the male sex to participate on athletic teams or in athletic competitions designated

only for participants of the female sex.”); Okla. Stat. Ann. tit. 70, § 1-125(B) (“[S]tudents in prekindergarten

through twelfth grades in this state shall require every multiple occupancy restroom or changing area designated as

follows: 1. For the exclusive use of the male sex; or 2. For the exclusive use of the female sex.”); S.C. Code Ann.

§ 59-1-500(B)(2)–(3) (“Athletic teams or sports designated for males, men, or boys shall not be open to students of

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 16

Several states show a substantial likelihood that they face a sovereign injury. To start,

they allege that they “maintain laws or policies that at least arguably conflict” with the

Documents. R. 1, PageID 19, ¶ 99 (citing state laws). They’re correct. The Department’s stance

on sexual orientation and gender identity discrimination conflicts with how these states regulate

education—separating students based on biological sex, whether in school sports, restrooms, or

in some other way.

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 explained, the

States have a sovereign interest in regulating education, so the Documents give rise to a

sovereign injury. Given the “precedent, history, or tradition of courts,” states can protect their

traditional lawmaking authority. United States v. Texas, 599 U.S. at 677. Our recent cases have

acknowledged that the sovereign injury here—a state’s ability to enforce its laws, particularly

over a traditional sovereign prerogative like education—is sufficient to confer standing. See

Kentucky v. Biden, 23 F.4th at 598–99. Consistent with our precedent, several states can show

their “own, contrary [education] policy, and that the [new federal policy] threatens to override

those policies.” Id. at 599. So our precedent aligns with what the original understanding

confirms: States can “sue the United States when a federal regulation purports to preempt state

law.” Id. at 598.

the female sex, unless no team designated for females in that sport is offered at the school in which the student is

enrolled. . . . Athletic teams or sports designated for females, women, or girls shall not be open to students of the

male sex.”); S.D. Codified Laws § 13-67-1 (“Only female students, based on their biological sex, may participate in

any team, sport, or athletic event designated as being for females, women, or girls.”).

16See, e.g., Tenn. Code Ann. § 49-6-310(a) (“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.”); Ala. Code § 16-1-52(b)(2) (“A public K–12 school may not allow a biological female

to participate on a male team if there is a female team in a sport. A public K–12 school may not allow a biological

male to participate on a female team.”); Alaska Stat. § 14.18.040(a) (“Separate school-sponsored teams may be

provided for each sex.”); Ark. Code Ann. § 6-1-107(c)(2)(B) (“An interscholastic, intercollegiate, intramural, or

club athletic team or sport that is expressly designated for females, women, or girls shall not be open to students of

the male sex.”); Idaho Code § 33-6203(2) (“Athletic teams or sports designated for females, women, or girls shall

not be open to students of the male sex.”); Miss. Code Ann. § 37-97-1(2) (“Athletic teams or sports designated for

‘females,’ ‘women’ or ‘girls’ shall not be open to students of the male sex.”); Mont. Code Ann. § 20-7-1306(2)

(“Athletic teams or sports designated for females, women, or girls may not be open to students of the male sex.”);

Neb. Rev. Stat. § 79-2,124 (providing that the “Nebraska Equal Opportunity in Education Act does not prohibit any

educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different

sexes”); W. Va. Code § 18-2-25d(c)(2) (“Athletic teams or sports designated for females, women, or girls shall not

be open to students of the male sex.”).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 17

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 5 U.S.C. § 553’s “procedures” were “designed to protect” (quoting Lujan,

504 U.S. at 573 n.8)). And that remains the case even if, on the merits, we determine that an

agency doesn’t “clearly” have to comply with the alleged procedural requirements after all. Id.

at 677. The procedural-rights theory requires that the States meet two requirements: Article III

standing and prudential standing. Id. at 671.

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

17The district court did not analyze Article III standing using the procedural-rights theory. Even so, we

may affirm on any ground supported by the record, even if not relied on by the district court. See Dismas Charities,

Inc. v. DOJ, 401 F.3d 666, 677 (6th Cir. 2005); United States v. Hudgins, 52 F.3d 115, 118 (6th Cir. 1995).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 18

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 5 U.S.C. § 553(b)–

(c). And the States allege that the Department’s Documents are “legislative rules that were

adopted without the required notice-and-comment procedures.” R. 1, PageID 22, ¶ 119.

If the APA’s procedures are “applicable,” the States are in the same position as the

plaintiff in Dismas Charities, 401 F.3d at 677. 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.; 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.”); id. ¶ 133 (“The Department’s

Interpretation and Fact Sheet are contrary to law because Title IX and longstanding Department

regulations expressly permit distinctions based on biological sex in certain circumstances.”).

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.

18More on legislative rules below.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 19

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 20, ¶ 106. Seeing how the procedural requirements of the APA seeks

to protect those “concrete interests,” the States have Article III standing “to challenge the [the

Department’s Documents] on the ground that notice and comment rulemaking was required

before the [Documents] could be put into effect.” Dismas Charities, 401 F.3d at 677.

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 5 U.S.C. § 702 to require all parties “adversely affected or aggrieved” by a

final agency action to have prudential standing). To establish prudential standing, we determine

whether the States have an interest that “arguably [falls] within the zone of interests to be

protected or regulated by the statute” in question. Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 153 (1970). We answer that inquiry in two parts: (1) we determine what

interests the statute arguably was intended to protect; and (2) we determine whether the

“plaintiff’s interests affected by the agency action in question are among them.” Bangura v.

Hansen, 434 F.3d 487, 499 (6th Cir. 2006) (quoting Nat’l Credit Union Admin., 522 U.S. at

492). Importantly, the “test is not meant to be especially demanding; in particular, there need be

no indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec. Indus.

Ass’n, 479 U.S. 388, 399–400 (1987) (footnote omitted).

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 20

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 rule is a matter for the merits. But for standing purposes,

we know this much: thanks to whatever the Department published in the Federal Register, the

Department is now locked into that position moving forward. We know that it “will fully

enforce” that position, not “any prior inconsistent” ones. Enforcement of Title IX, 86 Fed. Reg.

at 32639. The States, which depend on federal education funds under Title IX, are the “objects”

of this regulatory position. Most of them also have laws on the books that likely conflict with

that position. And because the Department skipped the notice-and-comment process, the States

lacked a chance to argue that the Department’s new Title IX policy was wrong before it was

issued. Seeing that the States are stuck between the rock of being forced to comply with these

regulations by abrogating state policies and the hard place of being threatened with enforcement

under Title IX, despite being unable to voice their concerns, we hold that they show a substantial

likelihood of Article III standing to support the district court’s preliminary injunction.

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 21

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.20

A.

First, the Documents are “final” agency action. Courts, of course, can only review an

agency action under the APA if it is “final.” 5 U.S.C. § 704. We take a “‘pragmatic’ approach”

to finality. U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599 (2016) (quoting Abbott

Lab’ys v. Gardener, 387 U.S. 136, 149 (1967)). With that pragmatic approach in mind, an

agency action is final if it is both (1) “the consummation of the agency’s decisionmaking

process” and (2) a decision “by which rights or obligations have been determined or from which

legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal

quotation marks omitted). Here, the parties agree that the first condition is satisfied, so we’ll

focus on the second.

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

19We note that the Department treats the issuance of the three Documents as one agency “action.” Put

differently, it doesn’t provide independent arguments for why the Fact Sheet isn’t final as compared to the Notice of

Interpretation. So we treat the Documents as one “action” too.

20In this Circuit, the reviewability question is not jurisdictional.

See Haines v. Fed. Motor Carrier Safety

Admin., 814 F.3d 417, 423–24 (6th Cir. 2016); Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 494 n.4 (6th Cir.

2014). And whether the Documents are interpretive or legislative rules goes to the merits. See 5 U.S.C. § 553(b)–

(c); id. § 706(2)(D). So we treat these issues separately, disentangled from the jurisdictional issues above. See Cal.

Cmtys. Against Toxics v. EPA, 934 F.3d 627, 635 (D.C. Cir. 2019) (explaining that finality analysis is distinct from

test for whether agency action is legislative rule).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 22

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 entitles 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.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 23

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” Letter—are intended as a basis for the States to “order[] and arrang[e] their affairs.”

Frozen Food Express v. United States, 351 U.S. 40, 44 (1956). Our “pragmatic approach” to

finality counsels us to find that these Documents create legal “safe harbors.” Hawkes, 578 U.S.

at 598–99; Texas v. EEOC, 933 F.3d at 443.

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.” Tenn. Code Ann.

§ 49-6-310(a). But the Fact Sheet says that the Department can investigate a situation where “a

transgender high school girl [i.e., a biological male] . . . joins her friends to try out for the girls’

cheerleading team and the coach turns her away from tryouts solely because she is transgender.”

Fact Sheet, supra.

So States will risk losing their federal funding if they continue to run their educational

institutions in accordance with their own laws and policies. 34 C.F.R. §§ 100.7(a),

(d), 100.8(a), (c). This is a “severe” penalty. Cannon v. Univ. of Chicago, 441 U.S. 677, 705

(1979). In fact, “[i]n fiscal year 2020-2021, educational programs and activities in Tennessee

that are funded through the Tennessee Department of Education are estimated to have received

approximately $1.5 billion in federal funding.” R. 1, PageID 5, ¶ 14. So again, the Documents

are “the basis for . . . ordering and arranging” the affairs of the States. Frozen Food, 351 U.S. at

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 24

44. This demonstrates that the Documents “determine[]” “rights or obligations.” Bennett, 520

U.S. at 178.

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)). As we’ve discussed,

the Department binds itself to a view of Title IX and tells the States how to avoid liability under

this view, which in turn requires the States to adjust their operations and to immediately broaden

the scope of their own Title IX investigations or face the consequences. Because of the

immediate impact on the States, whether the Documents determine the outcome in any particular

case is irrelevant to our inquiry (particularly on pre-enforcement review). See Frozen Food, 351

U.S. at 44; see also Hawkes, 578 U.S. at 599–600 (finding that when an agency has the authority

to impose legal consequences on a regulated party, its actions can be considered “final” simply

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 25

by warning regulated parties that, if they engage in certain conduct, “they do so at the risk of

significant criminal and civil penalties”).

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 34 C.F.R §§ 100.7(d), 100.8(a)). While other entities (including some

private parties) have concurrent enforcement authority, the Department can see this process all

21See U.S. Dep’t of Educ., Pending Cases Currently Under Investigation at Elementary-Secondary and

Post-Secondary Schools as of May, 17 2024 Search, https://www2.ed.gov/about/offices/list/ocr/docs

/investigations/open-investigations/tix.html.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 26

the way through from investigation to the revocation of funds. This all makes our circumstances

significantly different from those in Parsons. In sum, we find that the Documents are final

agency action.

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.

Even if agency action is final, “an agency action is reviewable under the APA only if

there are no adequate alternatives to APA review in court.” Hawkes, 578 U.S. at 600 (citing 5

U.S.C. § 704). An alternative remedy must provide “‘relief of the same genre’ to the party

seeking redress.” Rimmer v. Holder, 700 F.3d 246, 262 (6th Cir. 2012) (quoting Garcia v.

Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009)). The relevant statute here ensures “that the APA’s

general grant of jurisdiction to review agency decisions is not duplicative of more specific

statutory procedures for judicial review.” Bangura, 434 F.3d at 501; 5 U.S.C. § 704. But this

exception “should not be construed to defeat the central purpose of providing a broad spectrum

of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988).

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)).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 27

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 5 U.S.C.

§ 703). But the only case it points to in support of this contention—PDR Network, LLC v.

Carlton & Harris Chiropractic, Inc., 588 U.S. 1 (2019)—is inapposite. That case looked at

whether an aggrieved party may challenge an agency’s interpretation of a statute during an

enforcement proceeding where a special review act explicitly permitted pre-enforcement review

of certain regulations. Id. at 13–15 (Kavanaugh, J., concurring in the judgment). Basically, the

question was: Does a regulated party have to raise the argument pursuant to the statute’s pre-

enforcement review provision or forever lose it? That question isn’t at issue here—the

Department seeks to force the states to wait for review in an enforcement proceeding, not to

preclude such review. Nor does the Department argue that Title IX explicitly provides for pre-

enforcement review of certain regulations, such that general APA review might be precluded.

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—even if

only after adverse administrative action—is an adequate remedy. But to support that statement,

it only cites cases where a statute provided regulated parties with the ability to initiate

administrative proceedings (thereby making administrative review and APA review available

concurrently). See Parke, Davis & Co. v. Califano, 564 F.2d 1200, 1205–06 (6th Cir. 1977);

Garcia, 563 F.3d at 521, 523. The Department does not argue that the States have any ability to

do that. And for the reasons we articulated above, the States need not wait for the Department to

make the first move. All said, Title IX doesn’t provide an adequate alternative remedy.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 28

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,

[20 U.S.C.] § 1682, is an administrative procedure resulting in the withdrawal of federal funding

from institutions that are not in compliance.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S.

246, 255 (2009). And the Court has previously recognized a private right of action. See

Cannon, 441 U.S. 677.22 “These remedies—withdrawal of federal funds and an implied cause of

action—stand in stark contrast to the unusually elaborate, carefully tailored, and restrictive

enforcement schemes of” other statutes that have been held to impliedly preclude other statutory

remedies. Fitzgerald, 555 U.S. at 255 (internal quotation marks omitted).

22We note that Cannon has been questioned and criticized, see, e.g., Franklin, 503 U.S. at 77–78 (Scalia,

J., concurring) (explaining that courts “have abandoned the expansive rights-creating approach exemplified by

Cannon, and perhaps ought to abandon the notion of implied causes of action entirely” (citations omitted)), but it

remains good law.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 29

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.

20 U.S.C. § 1683. Looking at the plain text, it’s clear that there is more than one path to some

type of judicial review. The second sentence of § 1683, which provides one avenue to judicial

review, says that after an administrative enforcement proceeding strips the recipient of its

funding, the recipient can sue under the APA. Id.

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 § 1683, which says that agency action taken pursuant to § 1682 “shall be

subject to such judicial review as may otherwise be provided by law for similar action taken by

23This provision also says APA review is possible for any other action “not otherwise subject to judicial

review.” 20 U.S.C. § 1683. The Department does not explain what “not otherwise subject to judicial review” refers

to, nor does it argue that it has any particular significance. It might be a poorly drafted savings clause. We leave

this for another day.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 30

such department or agency on other grounds.” 20 U.S.C. § 1683 (emphases added). Put

differently, the availability of judicial review is dictated by the type of agency action, and § 1683

doesn’t provide an independent bar to review. For example, some courts interpreting an identical

judicial review provision in Title VI of the Civil Rights Act of 1964 24 say that the phrase “as

may otherwise be provided by law for similar action” can refer to 20 U.S.C. § 1234g.25 See, e.g.,

Freeman v. Cavazos, 923 F.2d 1434, 1440 (11th Cir. 1991) (finding that 20 U.S.C. § 1234g is

“the appropriate judicial review provision[] for the termination order in” a case concerning

“agency action terminating federal funding”). Another “provision in law, as specifically

identified in the legislative history of [the Civil Rights] Act” is § 702 of the APA. Adams v. Bell,

711 F.2d 161, 182 (D.C. Cir. 1983) (Wright, J., dissenting); Marlow v. U.S. Dep’t of Educ.,

820 F.2d 581, 582 (2d Cir. 1987). All of this suggests to us that § 1683 alone doesn’t bar judicial

review.

But even if Congress intended § 1683 to strip jurisdiction over some claims, we find that

the States’ claim is not the type that Congress intended to funnel through § 1683. See Axon, 598

U.S. at 188–89. Thunder Basin provides three considerations to guide our analysis here. 510

U.S. at 212–13.26 First, we ask: Will precluding federal court jurisdiction “foreclose all

meaningful judicial review” of the claim? Id. Next, we ask: Is the claim “wholly collateral to

[the] statute’s review provisions?” Id. at 212 (internal quotation marks omitted). Finally, we

24Because “Title IX was patterned after Title VI of the Civil Rights Act of 1964,” and because “[b]oth

statutes provide the same administrative mechanism for terminating federal financial support for institutions

engaged in prohibited discrimination,” we look to interpretations of Title VI’s judicial review provision to guide our

discussion here. See Cannon, 441 U.S. at 694–96; see also Fitzgerald, 555 U.S. at 258 (Congress “passed Title IX

with the explicit understanding that it would be interpreted as Title VI was.”); compare 20 U.S.C. § 1683, with

42 U.S.C. § 2000d-2.

2520 U.S.C. § 1234g provides for judicial review in the court of appeals of three types of adverse actions:

(1) an agency determines that a funding recipient “made an expenditure of funds that is not allowable under [a] grant

or cooperative agreement” (§ 1234a); (2) an agency withholds funds from a recipient after finding that it failed to

comply with a requirement that applies to it (§ 1234d); or (3) an agency issues a cease and desist order (§ 1234e).

Notably, 20 U.S.C. § 1234g doesn’t mention review of compliance agreements (§ 1234f)—the most frequent form

of agency action in this space. This is because, once the Department commences an investigation, it is statutorily

required to seek voluntary compliance at almost every step of the process. 20 U.S.C. § 1682; see also 34 C.F.R.

§ 100.7(d).

26We acknowledge that important questions have been raised in the debate over the extent to which the

Thunder Basin factors are even needed for our inquiry. See Axon, 598 U.S. at 205–17 (Gorsuch, J., concurring in

the judgment) (criticizing Thunder Basin and instead looking to the text of 28 U.S.C. § 1331 to answer jurisdictional

questions). But we do not take up those concerns here.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 31

ask: Is the claim “outside the agency’s expertise?” Id. “When the answer to all three questions

is yes, ‘we presume that Congress does not intend to limit [federal court] jurisdiction.’”

Axon, 598 U.S. at 186 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,

489 (2010)). “[T]he same conclusion might follow if the factors point in different directions,”

however, because the “ultimate question is how best to understand what Congress has done—

whether the statutory review scheme, though exclusive where it applies, reaches the claim in

question.” Id.27

Naturally, we start with the first consideration—whether prohibiting this pre-enforcement

action would “foreclose all meaningful judicial review of the claim.” Id. (internal quotation

marks omitted). As the Department reads § 1683, the States must lose their federal funding

through an enforcement proceeding before bringing any claims to federal court. But the

mechanics of how the Department and OCR (its litigation division) carry out its mandate

suggests that their proposal would foreclose all meaningful judicial review of the States’ claims.

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].” 34 C.F.R. § 100.7(d)(1). To illustrate the point, consider the

following scenario. The Department initiates an investigation against a Tennessee school

district, where state law requires that participation in athletic activities at public middle schools

27We also note that this case differs from Thunder Basin itself in various ways. First, the Court in Thunder

Basin concluded that the statute’s “comprehensive enforcement structure, combined with the legislative history’s

clear concern with channeling and streamlining the enforcement process, establishes a fairly discernible intent to

preclude district court review.” 510 U.S. at 216 (internal quotation marks omitted). Here, on the other hand, the

text of § 1683 does not come close to establishing a “comprehensive enforcement structure.” Second, Thunder

Basin addressed a situation in which two inspectors were appointed representatives of the agency to inspect the mine

for compliance with the statute. Id. at 203. After complaining to the agency that the appointment of these

representatives violated the company’s statutory rights and refusing to provide the inspectors with required

information, the company then filed suit in federal court. Id. at 205; see also Axon, 598 U.S. at 186–87. Though the

mining company in Thunder Basin “sued before a citation was issued,” 510 U.S. at 216, agency action had begun in

other ways. Namely, the agency had already taken action when it appointed two representatives to inspect the mine

and demanded they be provided with particular information. See id.; see also Elgin v. Dep’t of Treasury, 567 U.S. 1,

7–8 (2012) (holding that plaintiff must first go through administrative review process because the plaintiff was

brought before an ALJ, which counted as agency action, prior to plaintiff filing case in federal court). So in Thunder

Basin and Elgin, it made sense to insist that the parties go through the statutorily prescribed agency review process

rather than take a short cut to federal court. Here, no similar circumstances exist that would make it more efficient

for the States to first go through the administrative adjudication process. To the contrary, a process that requires

administrative review first and judicial review second would prove costly and dilatory for all parties involved.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 32

and high schools “must be determined by the student’s sex at the time of the student’s birth.”

Tenn. Code Ann. § 49-6-310(a). A lengthy investigation ensues. The Department finds that a

Tennessee school district is out of compliance and then seeks voluntary compliance, as it must

before it goes any further. 20 U.S.C. § 1682. Both parties are incentivized (one by statute and

regulation, the other by practical realities, costs, and the threat of enforcement action) to resolve

the matter informally. In fact, these matters “will be resolved by informal means whenever

possible.” See 34 C.F.R. § 100.7(d)(1).

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.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 33

That brings us to the second question—are the States’ claims wholly collateral? The

answer: Yes, for similar reasons to those just articulated. Important here, the “collateral”

inquiry, as “Free Enterprise Fund recognized, requires considering the nature of the claim, not

the status (pending or not) of an agency proceeding.” Axon, 598 U.S. at 194. The States “are

challenging the [Department’s] power to proceed at all, rather than actions taken in the agency

proceedings.” Id. at 192; see Heckler v. Ringer, 466 U.S. 602, 614 (1984); Fed. L. Enf’t Officers

Ass’n v. Ahuja, 62 F.4th 551, 564 (D.C. Cir. 2023). At bottom, the States are seeking notice and

an opportunity to comment. If the States’ notice-and-comment claim succeeds, the agency

action must be “set aside.” 5 U.S.C. § 706.28 All other claims the States include in their

complaint are alternatives if their notice-and-comment claim fails (and the Department explicitly

asks us not to consider them).

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.

28Our cases demonstrate that this is our ordinary remedial practice in successful notice-and-comment

challenges. E.g., Mann Constr., Inc. v. United States, 27 F.4th 1138, 1148 (6th Cir. 2022) (“Because the IRS’s

[challenged Notice] did not satisfy the notice-and-comment procedures for promulgating legislative rules under the

APA, we must set it aside.”). We recognize the question regarding whether the APA’s “set aside” provision

authorizes a federal court to order universal vacatur of agency action. See, e.g., United States v. Texas, 599 U.S. at

693–703 (Gorsuch, J., concurring). But we have no occasion to take up that question here.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 34

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 rules,

interpretive rules, and general statements of policy. This distinction matters. Legislative rules

have the force and effect of law and are subject to notice and comment. That means that an

agency must publish a notice about the proposed rule, allow the public to comment on the rule,

consider the comments, and issue a final rule setting forth the basis and purpose of the rule. See

5 U.S.C. § 553(b)–(c). These procedural requirements do not apply to interpretive rules or

general statements of policy. See id. § 553(b)(A).

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. Id. § 706(2)(D).29 This means that we must determine the

nature of the Department’s action: Is it a legislative rule? Or an interpretive rule?30

29We note that beyond the procedural requirements of the APA, the Department’s own interim final

regulations required a period of public notice and comment for “[s]ignificant guidance documents”—guidance

documents “that may reasonably be anticipated to” “[r]aise novel, legal, or policy issues arising out of legal

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 35

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., Inc. v. United States, 27 F.4th 1138, 1143

(6th Cir. 2022). 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).

And “[w]hen rulemaking carries out an express delegation of authority from Congress to an

agency, it usually leads to legislative rules.” Mann Constr., 27 F.4th at 1143. Distinguishing

between legislative and interpretive rules is an “extraordinarily case-specific endeavor.” Am.

Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987).

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.

mandates.” Rulemaking and Guidance Procedures, 85 Fed. Reg. 62597-01, 62608 (effective Nov. 4, 2020). The

Department rescinded those interim final regulations effective September 29, 2021, but that was after the

Department issued the Documents challenged in this case. Rulemaking and Guidance Procedures, 86 Fed. Reg.

53863-02. The States do not raise this point, however, so we don’t address it further.

30Recall that we determined that the Documents are binding on the Department because it withdrew its

previously held discretion to enforce Title IX consistent with a view that its anti-discrimination mandate does not

include sexual orientation and gender identity. This means the Documents cannot amount to a policy statement

because statements of policy are, “issued by an agency to advise the public prospectively of the manner in which the

agency proposes to exercise a discretionary power.” Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (emphasis added

and internal quotation marks omitted); see Flight Training Int’l, Inc. v. FAA, 58 F.4th 234, 242 (5th Cir. 2023); Am.

Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1111 (D.C. Cir. 1993) (explaining that the inquiry of

whether a rule “restrict[s] agency discretion” is helpful in determining whether a rule is interpretive or a policy

statement, but “restricting discretion tells one little about whether a rule is interpretive”). So here we will determine

whether the Documents are an interpretive rule or a legislative rule.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 36

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.” 20 U.S.C. § 1681(a). And the Department is “authorized and directed to effectuate

the provisions of section 1681 of this title with respect to such program or activity by issuing

rules, regulations, or orders of general applicability.” Id. § 1682.

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 § 1682). And “[w]hen rulemaking carries out an

express delegation of authority from Congress to an agency, it usually leads to legislative rules.”

Mann Constr., 27 F.4th at 1143; see Mendoza, 754 F.3d at 1021 (finding a rule is legislative

when the statutory language “establishes the [Act’s] general mission; Congress left it to the

[agency] to implement that mission through the creation of specific substantive provisions”).

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, 544 U.S. at 175.

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 37

stop the enforcement of their own contrary laws and policies. Failure to comply comes with the

risk of penalties, i.e., loss of funding, 20 U.S.C. § 1682, which is “characteristic[] of legislative

rules,” Mann Constr., 27 F.4th at 1143. In short, by changing the means of compliance with

Title IX, the Documents affected the stringency of Title IX itself. The Documents extend Title

IX’s protections to new forms of sex discrimination, obligating the States to act or face

repercussions.

The third reason that the Documents are likely legislative pertains specifically to the Fact

Sheet. As we’ve mentioned, the Fact Sheet lists five types of investigations Education can

initiate in accordance with the Documents. One scenario includes:

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.” 34 C.F.R. § 106.33 (emphases added). And “a

recipient may operate or sponsor separate teams for members of each sex where selection for

such teams is based upon competitive skill or the activity involved is a contact sport.” Id.

§ 106.41(b) (emphasis added).

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 38

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

coeducational teams and facilities. It follows that they could also separate programs and

facilities by gender identity. No one disputes that athletics programs solely used biological sex as

a classification method for decades—an approach authorized by existing Title IX regulations.

See 34 C.F.R. § 106.41(b). Yet the Fact Sheet makes clear that aid recipients must not organize

their athletics programs and facilities exclusively by biological sex. Fact Sheet, supra (noting

that the Department can initiate an investigation if “the district’s policies” do not allow for a

biological male “to try out for the girls’ cheerleading team” or enter “the girls’ restroom”).

Having permitted funding recipients to organize their athletics programs and facilities

exclusively by biological sex, the Department cannot now narrow the regulation’s classification

methods through an interpretive rule. See Tenn Hosp., 908 F.3d at 1043; Flight Training,

58 F.4th at 244 (finding that a rule is legislative where it requires less than the regulations

currently in place); see generally Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th

791, 807 (11th Cir. 2022) (en banc) (noting differences between gender identity and biological

sex).

31This finding is not in conflict with Perez v. Mortgage Bankers Association, which dealt specifically with

the now-defunct Paralyzed-Veterans doctrine. 575 U.S. at 95 (holding that Paralyzed Veterans of Am. v. D.C.

Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), is not consistent with the APA). That doctrine involved a different

question: When an agency changes its interpretation of one of the regulations that it enforces, does that

interpretation need to go through notice and comment? Id. at 102. Perez said no. Id. Put another way, when an

agency has issued an interpretive rule on a regulation and then a different interpretive rule later, the second

interpretation doesn’t need to go through notice and comment solely because it conflicts with the first one. See id. at

101 (“Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it

is also not required to use those procedures when it amends or repeals that interpretive rule.”).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 39

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 2016. Dear Colleague Letter on Title IX and Transgender

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 40

Students (May 13, 2016) (rescinded in 2017). Even if the Department had maintained consistent

views on the issue since 2016, we’re skeptical that a position held for that amount of time would

be considered “longstanding.” Rhea Lana, 824 F.3d at 1028; see id. at 1025 (“The Department

of Labor has for several decades read the Fair Labor Standards Act to prohibit for-profit, private-

sector entities from using volunteer workers.”). And, in any event, the view hasn’t been

consistent. See Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984)

(relying on the fact that a rule “simply restated the consistent practice of the agency”); see, e.g.,

Nondiscrimination on the Basis of Sex in Education (2020), 85 Fed. Reg. at 30178 (“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.”); Sexual

Harassment Guidance, 62 Fed. Reg. at 12039 (“Title IX does not prohibit discrimination on the

basis of sexual orientation.”). It can’t be that sexual orientation and gender identity have always

been protected given the clear evidence of prior contrary agency positions.

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

32To be clear, today we are not speaking to the validity of any arguments, raised below and on which the

district court did not opine, that the Documents violate the Spending Clause. See, e.g., Jackson, 544 U.S. at 181–84.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 41

sexual orientation and gender identity discrimination claims and to provide certain

accommodations—all because Title IX now prohibits discrimination on the basis of such traits.

See Syncor, 127 F.3d at 96.

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.” 27 F.4th 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.

One final note. Recognizing new forms of discrimination “substantially changes the

experience” for all regulated entities, in terms of how to carry out their obligations, and for all

the beneficiaries of Title IX—including biological women. See Elec. Priv. Info. Ctr. v. DHS,

653 F.3d 1, 7 (D.C. Cir. 2011). It seems to us that such “sweeping policy initiatives” are not

what courts have in mind when they say that “agencies need not address every conceivable

question that could arise in a regulatory scheme through notice-and-comment rulemaking.”

Tenn. Hosp., 908 F.3d at 1046 (internal quotation marks omitted).33

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.

33Taking a step back and considering our Constitution’s first principles, it becomes clear why sweeping

new rules promulgated under the language of “discrimination on the basis of sex” are properly considered legislative

rather than interpretive. The Founders understood legislative power to be the ability to promulgate generally

applicable rules governing private conduct. See Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 70 (2015)

(Thomas, J., concurring in the judgment) (“Under the original understanding of the Constitution,” the “formulation

of generally applicable rules of private conduct” “requires the exercise of legislative power.”); Gundy v. United

States, 588 U.S. 128, 153 (2019) (Gorsuch, J., dissenting) (“When it came to the legislative power, the framers

understood it to mean the power to adopt generally applicable rules of conduct governing future actions by private

persons.”); see West Virginia, 597 U.S. at 738 (Gorsuch, J., concurring) (“The framers believed that the power to

make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat

to individual liberty.”). When agencies create new rules that bear on private individuals’ and entities’ legal rights

and obligations, therefore, they are exercising a power that is unquestionably legislative by nature.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 42

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) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). On the one hand, a

preliminary injunction would prevent the Department from fully enforcing the Documents,

which, on the Department’s view, properly implement Title IX. But “the public’s true interest

lies in the correct application of the law.” Kentucky v. Biden, 23 F.4th at 612 (emphasis added).

And here, the States have shown that the Documents are likely procedurally invalid. As a result,

all factors support the issuance of a preliminary injunction.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 43

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 Title VII, not

Title IX, even before Bostock. EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560

(6th Cir. 2018), aff’d sub nom. Bostock, 590 U.S. at 683; Smith v. City of Salem, 378 F.3d 566

(6th Cir. 2004). Another does not answer the merits question because it was in an early stage of

litigation. Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221–22 (6th Cir. 2016) (not determining

the merits of the issue presented). Most importantly, none deal with the Department’s

Documents here. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 619 (4th Cir. 2020)

(“[A]pplication of [a] restroom policy against [a student with gender dysphoria] violated Title

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 44

IX.”); Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1050 (7th Cir.

2017) (finding a probability of success on the merits of a gender identity Title IX claim),

abrogated on other grounds by Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020).

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 APA.” States Br. at 52. For that reason, a preliminary injunction here doesn’t

step on the toes of another court. Saying that the Documents aren’t procedurally valid does not

“negate” any out-of-circuit precedent. AMC Ent., 549 F.3d at 773. Indeed, the precedent

remains in effect. And no “conflicting order[]” has been issued. Feller v. Brock, 802 F.2d 722,

728 (4th Cir. 1986).

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.

V.

For the reasons above, we AFFIRM.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 45

_________________

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 Administrative Procedure

Act.1 See 5 U.S.C. § 704. Legislative rules, to which the APA’s notice-and-comment provisions

apply, have the “force and effect of law”; interpretative actions, to which those provisions do not

apply, have no such force and effect and are thus not subject to judicial review. Mann Constr.,

Inc. v. United States, 27 F.4th 1138, 1143 (6th Cir. 2022) (quoting Perez v. Mortg. Bankers

Ass’n, 575 U.S. 92, 96–97 (2015)). Distinguishing between the two is often difficult, but some

guideposts help. Legislative rules impose new rights or obligations on regulated parties, while

interpretative rules “articulate what an agency thinks a statute means.” Ibid. Legislative rules,

then, bind agencies by stripping them of their decision-making discretion, while interpretations

are mere “clarifying documents” that “bind[] no one.” Valero Energy Corp. v. EPA, 927 F.3d

532, 537–38 (D.C. Cir. 2019). The Documents here are paradigmatic interpretations. Exactly as

expected, they articulate what the Department thinks Title IX means. They do not create legal

obligations or bind the Department to the position that any particular conduct constitutes

discrimination on the basis of sexual orientation or gender identity.

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

1There is some debate in the courts as to whether finality or reviewability, as a formal matter, is distinct

from the question of an action’s interpretative or legislative nature. Decades of administrative law, however, make

clear that the characteristics that make something an interpretative rule are the same characteristics that make that

rule non-final (and thus unreviewable) under the APA. See, e.g., Bennett v. Spear, 520 U.S. 154, 177–78 (1997)

(final actions are ones “by which rights or obligations have been determined, or from which legal consequences will

flow”); Am. Tort Reform Ass’n v. OSHA, 738 F.3d 387, 395 (D.C. Cir. 2013) (“‘Interpretative rules’ that do not

establish a binding norm are not subject to judicial review under the APA.”); Cal. Communities Against Toxics v.

EPA, 934 F.3d 627, 635 (D.C. Cir. 2019) (recognizing relationship between finality and legislative rules).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 46

this type of language. When a complaint meets the requirements described in the Interpretation,

the Documents do not require the Department to punish an educational entity. Rather, the

Department will at most “open an investigation.” Interpretation, 86 Fed. Reg. 32637, 32639

(June 22, 2021). Likewise, the Interpretation “does not determine the outcome of any particular

case or set of facts.” Ibid. It only “guide[s]” the Department. Ibid. For each complaint, the

Department will address “the specific compliance concerns.” Ibid. And the Fact Sheet provides

only “[e]xamples of the kinds of incidents [the Department] can investigate.” Fact Sheet, p. 1.

The Documents take no position on how to identify a student’s gender identity or whether any

specific conduct alleged in a complaint in fact violates Title IX. Thus, not only do the

Documents preserve the discretion of Department staff to determine whether any conduct alleged

in any complaint violates Title IX, but they also preserve the Department’s discretion to

investigate conduct at all. The Department is not, as with Ulysses binding himself to the mast to

resist the call of the Sirens, dictating to itself the action it must take whenever a particular type of

complaint comes in.

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 47

whether each filed complaint warrants an investigation and, ultimately, whether any complained-

of action constitutes sex discrimination. This obligation is based on Title IX alone, which

requires the Department to investigate claims of sex discrimination. The Documents explain to

the public that the Department believes that the sex discrimination prohibited by Title IX

includes discrimination based on sexual orientation or gender identity. And they do so at a high

level of generality. The Documents do not answer, for example, the most prominent question in

public discourse concerning this subject: whether separating athletic teams and events by

biological sex constitutes discrimination based on gender identity.

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 of Fair Housing and Equal

Opportunity to “accept for filing and investigate all complaints of sex discrimination, including

discrimination because of gender identity or sexual orientation.” 41 F.4th 992, 996 (8th Cir.

2022). The Ozarks court reasoned that an injunction against the memorandum “would not stop

the Department from investigating all complaints of sex discrimination . . . including complaints

of discrimination because of gender identity or sexual orientation” because the agency was still

required by statute to investigate sex-discrimination claims. Id. at 1001. The memorandum

merely defined what the agency believed to be sex discrimination. The agency could easily hold

that same belief regardless of whether it circulated the memorandum to its staff. Ibid. The same

is true here. With or without the Documents, the Department can investigate, for example, a

complaint alleging that a school prevented a biologically male, transgender, high-school student

from using the girls’ restroom or allowed students to harass their gay or transgender peers.

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 48

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 Title IX does not prohibit discrimination based on

sexual orientation or gender identity.” Ante at 22. But even if that were true, the Department

still must determine what constitutes this discrimination. The Documents do not establish that

any specific conduct constitutes discrimination based on sexual orientation or gender identity.

Even the specific incidents described in the Fact Sheet are only “[e]xamples of the kinds of the

incidents [the Department] can investigate.” Fact Sheet, p. 1 (emphasis added). They are not

examples of incidents that the Department will investigate, nor of incidents that necessarily

violate Title IX. As with all Title IX complaints, the Department remains free to decide both

whether to investigate an incident and, if it does, whether the incident violates Title IX’s

prohibition on sex discrimination. The Documents rather explain what the Department thinks, at

a high level of generality, such discrimination includes.

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 Title IX, schools may be liable for “deliberate indifference” to student-

on-student harassment committed “under the school’s disciplinary authority”). And thus if

similar treatment is meted out because a person is perceived as gay or transgender, the

application of the statute and regulations might be clear (and the plaintiffs, from their filings and

arguments, do not seem concerned about being subject to this type of investigation).

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 49

However, in the most controversial and fraught areas of access to sex-separated private

spaces and athletic teams (which are explicitly permitted under 20 U.S.C. § 1686 and 34 C.F.R.

§ 106.41(b)), the application is much less clear. At oral argument, I asked the lawyer for the

Department if the Documents contained any definition of “transgender” or “gender identity,” or

if an application of the status “transgender” might require a line-drawing exercise along a

continuum. The counsel readily agreed that the Documents do not address this matter. See Tr.

of Oral Argument at p. 8, ll. 10–24 (“Not reflected in these documents, Your Honor. These

documents don’t speak to it.”).

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.

2Even a name change might not be necessary. In the classic Saturday Night Live sketches, Julia Sweeney

played an androgynous person named Pat whose interactions often left other people unsure of Pat’s biological sex or

gender identity. See, e.g., Saturday Night Live: Pat at the Office (NBC television broadcast Dec. 1, 1990). Another

example comes in the context of the Social Security Administration’s name roles, where names like Kris (50%

female), Carey (48% female), Riley (49% female), and Emerson (47% female) might provide little insight to

whether a person conforms to conventional sex or gender clues. See Soc. Sec. Admin., National Name Data,

https://www.ssa.gov/oact/babynames/names.zip; Andrew Flowers, “The Most Common Unisex Names in America,”

FiveThirtyEight (June 10, 2015, 9:16 AM), https://fivethirtyeight.com/features/there-are-922-unisex-names-in-

america-is-yours-one-of-them.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 50

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 the States with speeches and public

statements.

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 5 U.S.C.

§ 701(a)(2)). The Documents are only an explanation that the Department will enforce Title IX

3Or, of course, the same applies to equal treatment of people with XX chromosomes, people who have or

once had vaginas, or can or once could produce human ova.

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 51

to prohibit discrimination based on sexual orientation and gender identity, without binding itself

to what actions will be found to constitute that discrimination.

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 “Title IX does not prohibit

discrimination based on sexual orientation or gender identity,” ante at 22—or interpret that

discrimination in a different way—by simply rescinding the Documents. See Perez, 575 U.S. at

101 (“Because an agency is not required to use notice-and-comment procedures to issue an initial

interpretative rule, it is also not required to use those procedures when it amends or repeals that

interpretative rule.”). Indeed, the Trump Administration did exactly that in 2017 when it issued,

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 52

without notice and comment, a “Dear Colleague” letter withdrawing what it called “statements of

policy and guidance” that interpreted 34 C.F.R. § 106.33 to “require access to sex-segregated

facilities based on gender identity.” See Dep’t of Educ., Office for Civil Rights, Dear Colleague

Letter (Feb. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-

ix.pdf. And there has been no argument that this letter or its subsequent recission required

notice-and-comment procedures.

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 Title IX but leaving it free to

change course if it determines that to be warranted. That certainly does not “evoke[] binding

legal effect,” ibid.

Put simply, the Documents explain legal obligations; they do not create them. They

consistently speak of what the Department believes Title IX requires, not what the Documents

themselves require. And while an agency’s characterization of an action is not dispositive of its

true nature, this conclusion should be obvious here. The Documents do not “fully enforce”

themselves. They explain the Department’s enforcement of Title IX. Without Title IX, the

Documents are meaningless. Naturally, any penalties that the States might face or injuries they

might incur will flow from the statute, not from the Documents.

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

No. 22-5807 Tennessee, et al. v. Dep’t of Educ., et al. Page 53

obligations—and any others related to the Documents—flow from Title IX, not from the

Documents themselves.

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 Title IX.” Ante at 31

(quoting R. Shep Melnick, The Strange Evolution of Title IX, National Affairs (Summer 2018)).

The threat, then, seems nothing more than “a highly attenuated chain of possibilities” that does

not constitute injury in fact. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013). And

even if there were a stronger likelihood that the States would incur this injury, the injury would

still flow from Title IX, not the Documents.

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 APA itself, show that this is not true. See,

e.g., 5 U.S.C. § 553; Perez, 575 U.S. at 97; Guernsey Mem’l Hosp., 514 U.S. at 99.

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 APA, regardless of whether petitioners otherwise might meet what

the majority calls a proprietary-interest, sovereign-interest, or procedural-rights theory of

standing. See 5 U.S.C. §§ 553(b)(A); 704. The Documents simply do not create legal interests

or injuries for which the States can seek judicial remedies. For these reasons, I respectfully

dissent.