# Tennessee v. United States Department of Education

> District Court, E.D. Tennessee · July 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10435087

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** July 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10435087

## How later opinions describe it (automated extraction)

- explaining that agency rules are “typically reviewable without waiting for enforcement.”
- holding that a substantive rule or “a legislative-type rule,” is one that “affect[s] individual rights and obligations.”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

THE STATE OF TENNESSEE, et al., )
)
Plaintiffs, )
) Case No. 3:21-cv-308
v. )
) Judge Atchley
)
UNITED STATES DEPARTMENT OF ) Magistrate Judge Poplin
EDUCATION, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion for Preliminary Injunction [Doc. 10] filed by Plaintiff
States1 and the Motion to Dismiss [Doc. 49] filed by Defendants United States Department of
Education and Miguel Cardona, in his official capacity as Secretary of Education; Equal
Employment Opportunity Commission and Charlotte Burrows, in her official capacity as the
Chair of the Equal Employment Opportunity Commission; and United States Department of
Justice, Merrick Garland, in his official capacity as Attorney General of the United States, and
Kristen Clarke, in her official capacity as the Assistant Attorney General for Civil Rights. The
relevant issues have been fully briefed, and the Court heard oral argument. These motions are now
ripe for review.
For the reasons below, Plaintiffs’ Motion for Preliminary Injunction [Doc. 10] is
GRANTED and Defendants’ Motion to Dismiss [Doc. 49] is DENIED.

1 Plaintiff States consist of Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas,
Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and
West Virginia.
I. BACKGROUND
A. Bostock v. Clayton County
In Bostock v. Clayton County, the Supreme Court of the United States was asked to resolve
a discrete legal issue: whether Title VII of the Civil Rights Act of 1964, which prohibits

employment discrimination “because of…sex,” bars an employer from firing someone simply for
being homosexual or transgender. 140 S. Ct. 1731, 1738-39 (2020). The Court answered this
question affirmatively.
The Court explained that Title VII’s “because of…sex” language incorporates a “but-for”
causation standard; so long as “sex” was one “but-for” cause of an employee’s termination, that is
sufficient to trigger Title VII. Id. at 1739. The Court further explained that “sex” refers to the
biological distinctions between males and females. Id. Taken together, the Court clarified that
“[a]n employer violates Title VII when it intentionally fires an individual employee based in part
on sex.” Id. at 1741.
The Court then reasoned that “it is impossible to discriminate against a person for being

homosexual or transgender without discriminating against that individual based on sex.” Id.
“[H]omosexuality and transgender status are inextricably bound up with sex” because “to
discriminate on these grounds requires an employer to intentionally treat individual employees
differently because of their sex.” Id. at 1742. The Court held that, under Title VII, “employers
are prohibited from firing employees on the basis of homosexuality or transgender status.” Id. at
1753.
The Court was careful to narrow the scope of its holding. Id. That is, its holding did not
“sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” Id. Nor
did the Court’s decision “purport to address bathrooms, locker rooms, [dress codes] or anything
else of the kind.” Id. The Court expressly declined to “prejudge” any laws or issues not before it,
observing instead that “[w]hether policies and practices might or might not qualify as unlawful
discrimination or find justifications under other provisions of Title VII are questions for future
cases.” Id.

B. Executive Order
On January 20, 2021, the President of the United States signed an “Executive Order on
Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
Exec. Order. No. 13988, 86 Fed. Reg. 7023-25 (Jan. 20, 2021) (herein “President’s Executive
Order”). Under the Supreme Court’s reasoning in Bostock, the Executive Order declared that “laws
that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual
orientation.” Id. (citing Bostock, 140 S. Ct. 1731). The President directed federal agencies to “fully
implement statutes that prohibit sex discrimination” consistent with the Administration’s
interpretation. Id.
C. Agency Response to Executive Order

In response to the President’s Executive Order, the Department of Education
(“Department”) and Equal Employment Opportunity Commission (“EEOC”) issued guidance
documents providing their interpretations of Title IX of the Education Amendments Act of
1972 (“Title IX”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), respectively.
1. Department of Education
Defendant United States Department of Education is an executive agency of the federal
government responsible for the enforcement and administration of Title IX. [Doc. 1 at ¶ 17] (citing
20 U.S.C. §§ 3411, 3441).
On June 22, 2021, the Department published in the Federal Register an “Interpretation” of
Title IX. [Doc. 1-2] (“Enforcement of Title IX of the Education Amendments of 1972 With
Respect to Discrimination on Sexual Orientation and Gender Identity in Light of Bostock v.
Clayton County.” 86 Fed. Reg. 32637 (June 22, 2021)). The Interpretation took effect upon

publication. [Id.]. The Department recognized that the Interpretation represented a change in
position, explaining the purpose of the Interpretation was “to make clear that the Department
interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on
sexual orientation and gender identity” in light of the Bostock decision. [Id.]. The Interpretation
states that the Department “will 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” and that the Interpretation “will guide the Department in
processing complaints and conducting investigations.” [Id.]. The Interpretation “supersedes and
replaces any prior inconsistent statements made by the Department regarding the scope of Title
IX’s jurisdiction over discrimination based on sexual orientation and gender identity.” [Id.].

Subsequently, on June 23, 2021, the Department issued a “Dear Educator” letter to directly
notify those subject to Title IX of the Department’s Interpretation. [Doc. 1-4] (“Letter to
Educators on Title IX’s 49th Anniversary” (June 23, 2021)).2 The “Dear Educator” letter
reiterates that “Title IX’s protection against sex discrimination encompasses discrimination
based on sexual orientation and gender identity” and explains that the Department “will fully
enforce Title IX to prohibit discrimination based on sexual orientation and gender identity.”
[Id.].

2 https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf (last visited July
15, 2022).
The “Dear Educator” letter references an accompanying “Fact Sheet” that expounds on
the Department’s interpretation of Title IX. [Doc. 1-4] (“U.S. Dep’t of Justice & U.S. Dep’t of
Educ., Confronting Anti-LGBTQI+ Harassment in Schools” (June 2021)).3 The Fact Sheet
explains that “discrimination against students based on their sexual orientation or gender identity

is a form of discrimination prohibited by federal law.” [Id.]. The Fact Sheet also notes that
regulated entities “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.” [Id.]. The Fact Sheet states that the Department “can [] provide information to
assist schools in meeting their legal obligations,” and offers examples of specific conduct related
to sexual orientation and gender identity that the Department can investigate as incidents of
discrimination under Title IX. [Id.].
2. Equal Employment Opportunity Commission
Defendant Equal Employment Opportunity Commission is a federal agency charged with
limited enforcement of, among other things, Title VII. [Doc. 1 at ¶ 19] (citing 42 U.S.C. § 2000e-

6).
On June 15, 2021, the EEOC issued a “Technical Assistance Document.” [Doc. 1-5]
(“Protections Against Employment Discrimination Based on Sexual Orientation or Gender
Identity” (June 15, 2021)).4 The Technical Assistance Document “explains what the Bostock
decision means for LGBTQ+ workers (and all covered workers) and for employers across the
country” and “explains the [EEOC’s] established legal positions on LGBTQ+ related matters.”
Id.

3 https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-202106.pdf (last visited July 15, 2022).

4 https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-
gender (last visited July 15, 2022).
After summarizing Title VII’s general requirements, the Technical Assistance Document
provides examples of employer conduct that would constitute discrimination under Bostock
through a series of questions and answers. Id. Specifically, the Technical Assistance Document
purports to explain employers’ obligations with respect to dress codes, bathrooms, locker rooms,

showers, and use of preferred pronouns or names. [Id.]. The Technical Assistance Document
cautions that it “does not have the force and effect of law and is not meant to bind the public in
any way.” [Id.]. Instead, the Technical Assistance Document is “intended only to provide clarity
to the public regarding existing requirements under the law.” [Id.]. The Technical Assistance
Document invites individuals to file a charge of discrimination with the EEOC if they believe
their rights under Title VII, as explained within the document, have been violated. [Id.].
D. Current Lawsuit
Plaintiff States are employers subject to the requirements of Title VII, and are home to
political subdivisions and other employers subject to the requirements of Title VII. [Doc. 1 at ¶¶
8-9, 15-16].5 Plaintiff States also oversee and operate educational institutions and other

educational programs and activities that receive federal funding and are thus subject to the
requirements of Title IX. [Id. at ¶¶ 12, 15].
On August 30, 2021, Plaintiffs filed a Complaint challenging the legality of the guidance
documents issued by the Department and the EEOC in response to the President’s Executive
Order. [Id.]. Specifically, Plaintiffs contend that Defendants’ guidance documents are procedurally
and substantively unlawful under the Administrative Procedure Act (“APA”) and the United States

5 For consistency and ease of reference, record citations are to the CM/ECF-stamped document and page number, not
to the internal pagination of any filed document. Where possible, citation is made to more specific subdivisions within
a document.
Constitution. [Id.]. Plaintiffs seek preliminary and permanent injunctive and declaratory relief and
a judgment setting aside Defendants’ guidance documents. [Id. at 33-34].
On September 2, 2021, Plaintiffs filed a Motion for Preliminary Injunction [Doc. 10],
requesting the Court to enjoin Defendants from enforcing the challenged guidance documents until

this case is resolved on the merits. Defendants then filed a Motion to Dismiss [Doc. 49], seeking
dismissal of this action in its entirety. Defendants claim (1) the Court lacks subject matter
jurisdiction to consider Plaintiffs’ claims and (2) Plaintiffs fail to state plausible claims for relief.
[Id.].
II. STANDARD OF REVIEW
Rule 65 of the Federal Rules of Civil Procedure permits a party to seek injunctive relief
to prevent immediate and irreparable injury, loss, or damage. The purpose of a preliminary
injunction is to preserve the respective positions of the parties until a trial on the merits can be
held. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Certified Restoration Dry Clean
Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007).

Whether to issue a preliminary injunction is committed to the sound discretion of the trial
court. Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). A
preliminary injunction is an “extraordinary and drastic remedy” that “may only be awarded upon
a clear showing that the [moving party] is entitled to such relief.” Fowler v. Benson, 924 F.3d 247,
256 (6th Cir. 2019) (internal citations omitted). “[T]he party seeking a preliminary injunction bears
the burden of justifying such relief.” Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty.,
796 F.3d 636, 642 (6th Cir. 2015); see also Fed. R. Civ. P. 65(b).
In the United States Court of Appeals for the Sixth Circuit, four factors determine when a
court should grant a preliminary injunction: “(1) whether the movant has shown a likelihood of
success on the merits; (2) whether the moving party will be irreparably injured absent an
injunction; (3) whether issuing an injunction will harm other parties to the litigation; and (4)
whether an injunction is in the public interest.” Vitolo v. Guzman, 999 F.3d 353, 360 (6th Cir.
2021) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). These four factors are “to be balanced”

against one another; they are “not prerequisites that must be met.” Michael v. Futhey, 2009 WL
4981688, at *17 (6th Cir. Dec. 17, 2009).
Furthermore, “in addition to demonstrating a likelihood of success on the substantive
claims, a plaintiff must also show a likelihood of success of establishing jurisdiction.” Memphis
A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021) (citing Waskul v. Washtenaw
Cnty. Cmty. Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018)). “If a plaintiff cannot show
a likelihood of jurisdiction, then the court will deny the preliminary injunction.” Id. (explaining
that there is no continuing need for a preliminary injunction when there is not a substantial
likelihood that the claims will remain justiciable).
III. ANALYSIS

As an initial matter, there is substantial overlap between the pending motions. Defendants
contend Plaintiffs are not entitled to a preliminary injunction for the same reasons this action
should be dismissed. Because Defendants’ arguments in opposition to the requested injunctive
relief are identical to their arguments for dismissal, the Court will resolve both motions in the
context of determining whether a preliminary injunction is warranted. Hils v. Davis, 2022 WL
769509, at *5 (S.D. Ohio Mar. 14, 2022) (collecting cases) (“Because Defendants’ position on
Plaintiffs’ likelihood of success on the merits is identical to their motion to dismiss, the Court
will analyze these questions together.”); Austin v. United Auto Workers Intern. Union, 2004 WL
2112730, at *2-3 (E.D. Mich. June 4, 2004) (holding that plaintiff’s failure to demonstrate a
likelihood of success on the merits also signified a failure to state a claim sufficient to survive a
motion to dismiss).
A. Jurisdiction
Plaintiffs maintain that their claims are justiciable, [Doc. 11 at 16-18], while Defendants

contend the Court lacks subject matter jurisdiction. [Doc. 48 at 26-34]. Specifically, Defendants
argue that Plaintiffs lack standing and their claims are not yet ripe for review. [Id.].6
1. Standing
Article III of the United States Constitution limits the jurisdiction of federal courts to
actual cases and controversies. U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-60 (1992). “Standing is a core component of this ‘case or controversy requirement of
Article III.’” Memphis A. Philip Randolph Inst., 2 F.4th at 555 (quoting Lujan, 504 U.S. at 560).
Standing is a “threshold question in every federal case” that asks “whether the plaintiff is [a] proper
party to bring [a particular lawsuit].” Coyne v. American Tobacco Co., 183 F.3d 488, 496 (6th Cir.
1999); Raines v. Byrd, 521 U.S. 811, 818 (1997). Standing ensures that the plaintiff has a sufficient

“personal stake in the outcome of the controversy as to warrant the invocation of federal court
jurisdiction and to justify exercise of the court’s remedial powers on [their] behalf.” Lugo v. Miller,
640 F.2d 823, 827 (6th Cir. 1981).
“[T]he presence of one party with standing is sufficient to satisfy Article III’s case or
controversy requirement.” Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 52 n.2

6 Defendants also contend that the Court lacks jurisdiction over Plaintiffs’ APA claims because Plaintiffs have an
adequate alternative remedy available to them. [Doc. 49-1 at 16-19]. However, “[b]ecause the APA is not a
jurisdiction-conferring statute, ‘[the] elements of a claim under the APA…are not jurisdictional.’” Haines v. Fed.
Motor Carrier Safety Admin., 814 F.3d 417, 424 (6th Cir. 2016) (quoting Jama v. Dep’t of Homeland Sec., 760 F.3d
490, 494 (6th Cir. 2014)). While there are threshold questions under the APA, such questions speak to the failure to
state a claim under Rule 12(b)(6) rather than a lack of subject matter jurisdiction under Rule 12(b)(1). Id. at 424-27
(“To state a claim for relief under the APA, a plaintiff must allege that his or her injury stems from a final agency
action for which there is no other adequate remedy in court.”)
(2006); Phillips v. Snyder, 836 F.3d 707, 714 n.2 (6th Cir. 2016) (collecting cases). To satisfy
Article III’s standing requirement, a plaintiff must demonstrate (1) it has suffered an injury in fact;
(2) that injury is fairly traceable to the challenged conduct of the defendant; and (3) that the injury
will likely be redressed by a favorable decision. Lujan, 504 U.S. at 560-61; Spokeo Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016) (summarizing the standing elements as: (1) injury in fact; (2)
traceability; and (3) redressability). To obtain injunctive relief, a plaintiff “must show actual
present harm or a significant possibility of future harm.” Grendell v. Ohio Supreme Court, 252
F.3d 828, 832 (6th Cir. 2001).
As a threshold matter, it is of great significance that Plaintiffs are sovereign States, as States
constitute a special class of litigants for federal jurisdictional purposes. Massachusetts v. EPA, 127
S. Ct. 1438, 1453-54 (2007). In Massachusetts, the Supreme Court noted “[i]t is of considerable
relevance that the party seeking review here is a sovereign State and not…a private individual.”
Id. at 1454. “States are not normal litigants for the purposes of invoking federal jurisdiction,” thus,
Plaintiff States are entitled to “special solicitude” in the Court’s standing analysis. Id. at 1454-55;

see also Arizona v. Biden, 2022 WL 2437870, at *5 (6th Cir. July 5, 2022) (quoting Massachusetts,
127 S. Ct. 1438) (explaining “States sometimes are entitled to ‘special solicitude’…because they
may incur ‘quasi-sovereign’ injuries that private parties cannot.”). However, any “special
solicitude” afforded to States does not eliminate the core standing requirements of an injury in
fact, causation, and redressability. Id. at 1455-59; Arizona, 2022 WL 2437870 at *5.
Here, the primary dispute centers around the injury in fact requirement. “A plaintiff
suffers an ‘injury in fact’ when [their] legally protected interest has been invaded and the injury
is both ‘concrete and particularized’ and ‘actual or imminent;’ not ‘conjectural or hypothetical.’”
Kiser v. Reitz, 765 F.3d 601, 607 (6th Cir. 2014) (quoting Lujan, 504 U.S. at 560). Plaintiffs
identify several injuries inflicted by the challenged guidance. [Doc. 11 at 17]. During oral
argument, Plaintiffs represented that the alleged injury to their sovereign interests is the most direct
injury that confers standing. The Court agrees.
It is well-established that “[S]tates have a sovereign interest in ‘the power to create and

enforce a legal code.’” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,
601-02 (1982); see also Maine v. Taylor, 477 U.S. 131, 137 (1986) (“[A] State clearly has a
legitimate interest in the continued enforceability of its own statutes.”). Pursuant to that interest,
courts have recognized that States suffer a cognizable injury for purposes of constitutional standing
when they allege an intrusion on their ability to enforce their own legal code, whether by way of
direct interference or interference analogous to substantial pressure to change state laws. Id. 7
Plaintiffs contend they are presently injured by Defendants’ guidance documents, as the
guidance directly interferes with Plaintiffs’ sovereign authority to enforce state laws. [Doc. 11 at
17]. Plaintiffs claim they have exercised their sovereign authority to enact laws that “arguably

7 See also Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002, 1004 (2022) (internal citations
omitted) (“A State clearly has a legitimate interest in the continued enforceability of its own statutes, and a State’s
opportunity to defend its laws in federal court should not be lightly cut off.”); Colorado v. Toll, 268 U.S. 228, 229-30
(1925) (allowing Colorado to challenge federal regulations alleged “to interfere with the sovereign rights of the
State”); Missouri v. Holland, 252 U.S. 416, 431 (1920) (taking jurisdiction over an action to enjoin enforcement of a
federal statute that interfered with Missouri’s ability to enforce its regulations on the same subject); Ohio ex rel.
Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232-33 (6th Cir. 1985) (finding Ohio had standing to challenge a
federal agency’s regulation that “endangered and rendered uncertain” a state statute); Texas v. EEOC, 933 F.3d 433,
446 (5th Cir. 2019) (internal citations omitted) (“[B]eing pressured to change state law constitutes an injury because
states have a sovereign interest in the power to create and enforce a legal code.”); Massachusetts v. U.S. Dep’t of
Educ., 340 F. Supp.3d 7, 12 (D.C. Cir. 2018) (citing Alfred L. Snapp & Son, Inc., 458 U.S. at 601-02); Texas v. United
States, 809 F.3d 134, 153 (5th Cir. 2015) (“In the absence of an actual conflict [between federal action and a state’s
ability to regulate], courts have also found a cognizable interference where the federal action creates an
intrusion…analogous to pressure to change state law.”); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 268
(4th Cir. 2011) (“A federal statute that hinders a state’s exercise of this sovereign power to ‘create and enforce a legal
code’ at least arguably inflicts an injury sufficient to provide a state standing to challenge the federal statute.”);
Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008) (finding that Wyoming had standing
to challenge federal agency’s interpretation of federal firearms law that undermined Wyoming’s ability to enforce its
own legal code); State of Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989) (finding a sufficient
injury in fact because federal regulations interfered with the States’ sovereign interest in enforcing their own laws);
New York v. Mnuchin, 408 F. Supp.3d 399, 410 (S.D.N.Y. Sept. 30, 2019) (finding States presented viable grounds
for establishing standing based, in part, on pressure to change their tax policies).
conflict” with the guidance documents, identifying specific statutes to bolster their allegations.
[Docs. 57 at 11; 1 at ¶¶ 98-99]. Plaintiffs argue that based on Defendants’ guidance, conduct
required under their state laws constitutes sex discrimination under Titles VII and IX. [Doc. 11 at
18]. Therefore, Plaintiffs claim Defendants’ interpretations of Titles VII and IX, as set forth in the

challenged guidance, directly interfere with and threaten their ability to enforce their state laws as
written. [Docs. 1 at ¶ 108; 11 at 17].
It is well-settled that Plaintiffs have a concrete interest in the continued enforceability
of their state laws, and ten Plaintiff States have identified a plausible conflict between their state
laws and Defendants’ guidance documents. Plaintiffs have enacted, and are currently enforcing,
statutes that arguably conflict with Defendants’ guidance as to the legality of certain conduct
related to sexual orientation and gender identity.
For example, Tennessee has a statute providing “[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.” [Id. at ¶ 98].8 Yet, the

Department’s Fact Sheet, which purports to explain existing obligations under Title IX,
highlights that students should be allowed to participate on a sports team consistent with their
gender identity, rather than biological sex. [Doc. 1-4]. Tennessee also has a statute providing
public school students, teachers, and employees with a cause of action against a school that
“‘intentionally allow[s] a member of the opposite sex to enter [a] multi-occupancy restroom or
changing facility while other persons [are] present.” [Id. at ¶ 98].9 In contrast, the Department’s

8 Similarly, Plaintiffs Alabama, Arkansas, Idaho, and Montana have enacted laws providing that designations for
school-sponsored athletic activities must be determined by biological sex. [Doc. 1 at ¶ 99].
9 Similarly, Plaintiffs Nebraska, Oklahoma, and West Virginia have enacted laws that provide for sex-separated
facilities in the educational and employment contexts and prohibit members of the opposite sex from using those
facilities. [Id.].
Fact Sheet notes that students should be allowed to use the bathroom that aligns with their gender
identity, and the EEOC’s Technical Assistance Document provides that covered employers must
allow an individual to access a bathroom, locker room, or shower that corresponds to their gender
identity. [Docs. 1-4, 1-5].

At a minimum, Defendants’ guidance appears to deem conduct required by Plaintiffs’
state laws to be unlawful sex discrimination under federal law. And, because Plaintiffs are
subject to Titles VII and IX, and are thus objects of the guidance, Defendants’ guidance directly
interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws.
Plaintiffs cannot continue regulating pursuant to their state laws while simultaneously complying
with Defendants’ guidance.
Additionally, Plaintiffs claim that they are currently injured by Defendants’ guidance
documents, as the guidance puts substantial pressure on Plaintiffs to change state laws.10 Plaintiffs
have identified a conflict between Defendants’ guidance and what their state laws require, and the
guidance applies to Plaintiffs. Defendants have vowed to enforce these statues consistent with the

challenged guidance, and Defendants do not dispute that an enforcement action puts Plaintiffs at
risk of losing substantial federal funding. Defendants have the power and ability to investigate
“sex discrimination” and to enforce the guidance against Plaintiffs, and Defendants have not
disavowed doing so. Therefore, as it currently stands, Plaintiffs must choose between the threat of
legal consequences—enforcement action, civil penalties, and the withholding of federal funding –
or altering their state laws to ensure compliance with the guidance and avoid such adverse action.
As other courts have recognized, being left to such an untenable choice inflicts substantial pressure
on Plaintiffs to change their state laws—an intrusion sufficient to constitute an injury for standing

10 Plaintiffs alleged this injury in their Complaint and further developed their argument regarding this injury during
oral argument. [Doc. 1 at ¶¶108-109].
purposes. Supra at n.7.
Defendants argue that Plaintiffs’ alleged interference with their sovereign authority to
create and enforce a legal code cannot be reconciled with the Supreme Court’s decision in
Massachusetts v. Mellon, which explained that Article III jurisdiction cannot be based upon

“abstract questions…of sovereignty.” [Doc. 48 at 29]. (citing 262 U.S. 477, 485 (1923)). In
Mellon, the Supreme Court rejected Massachusetts’s assertion that a sovereign state has an
absolute right to sue on its own behalf. Id. at 484-85. Massachusetts sued to challenge the
constitutionality of the Maternity Act, arguing the statute was an improper usurpation of power
reserved to the states. Id. Id. at 480-81. The Court first highlighted that the powers of the states
were not actually invaded, as the Act “imposes no obligation but simply extends an option which
the state is free to accept or reject.” Id. at 480-82. The Court then noted that the dispute did not
involve “rights of person or property,” “rights of dominion over physical domain,” or “quasi
sovereign rights actually invaded or threatened,” but instead involved “abstract questions of
political power, of sovereignty, of government.” Id. at 485. Thus, because “[n]o rights of the state

falling within the scope of the judicial power” were presented for adjudication, Massachusetts
could not invoke the power of the judiciary to pass judgment on the validity of the Maternity
Act. Id.
The Sixth Circuit recently expounded on Mellon, clarifying that “[t]here is [] no Mellon
bar against the plaintiff states’ suit in their sovereign and quasi-sovereign capacities.” Kentucky
v. Biden, 23 F.4th 585, 597-98 (6th Cir. 2022). So, in other words, when sovereign and quasi-
sovereign interests are actually invaded or threatened, a State may sue the United States to
vindicate its own rights. Id. at 596-98 (concluding that “Mellon likely does not bar the state
plaintiffs’ claims to the extent they assert sovereign and quasi-sovereign interests”); see also
Massachusetts, 127 S. Ct. at 1455, n.17 (2007) (citing Georgia v. Pennsylvania R. Co., 324 U.S.
439, 447 (1945) (“[T]here is a critical difference between allowing a State ‘to protect her citizens
from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to
assert its [own] rights under federal law (which it has standing to do).”)

Here, unlike in Mellon, Plaintiff States have identified a specific sovereign interest at
stake—the power to create and enforce a legal code—and further identified plausible conflicts
between Defendants’ guidance documents and their own state laws to demonstrate that their
sovereign interests are actually invaded or threatened. As such, the Court is asked to resolve a
“concrete” controversy, rather than an “abstract question[]…of sovereignty” like Defendants
suggest.
Further, Defendants contend Plaintiffs’ standing argument is undermined by the Sixth
Circuit’s decision in Arizona v. Biden. [Doc. 78 at 2] (citing 31 F.4th 469 (6th Cir. 2022)). In
Arizona, the Sixth Circuit determined that three States failed to demonstrate an injury in fact
because the challenged guidance did “not directly injure the States. It [did] not regulate the States

by telling them what they [could] or [could not] do in their jurisdiction.” 31 F.4th at 474. Instead,
the guidance merely regulated the actions of third-party federal employees by telling them what to
prioritize in enforcing federal immigration law. Id. Additionally, the Sixth Circuit noted the States
did not allege an injury to a sovereign interest traditionally recognized by courts, such as the
“regulation of them as States, or preemption of local lawmaking authority.” Id. at 476. Instead, the
States merely claimed an injury in fact based on “indirect fiscal burdens allegedly flowing from
the [guidance].” Id.
This case is distinguishable. Unlike in Arizona, Plaintiffs are challenging guidance
documents that directly apply to them. As employers and operators of educational institutions,
Plaintiffs are subject to the requirements of Titles VII and IX and, thus, are objects of the
challenged guidance documents. Supra at 12-13. Therefore, the challenged guidance documents
“regulate the States by telling them what they can or cannot do” within their jurisdiction with
respect to their treatment of individuals based on sexual orientation and gender identity. 31

F.4th at 474. Unlike in Arizona, Plaintiffs have asserted an injury to a sovereign interest
traditionally recognized by courts—the power to create and enforce a legal code. Supra at 11. In
light of these distinctions, the Court finds that Arizona does not undermine Plaintiffs’ standing
argument.
For the reasons above, the Court finds that ten Plaintiff States have adequately
demonstrated an injury in fact to their sovereign interests.11 Defendants’ guidance documents
presently harm Plaintiff States by undermining their sovereign authority to enforce their state
laws as written and imposing substantial pressure on Plaintiffs to change their state laws. And
Plaintiffs are suffering these injuries now, making them “actual or imminent” injuries, “not
conjectural or hypothetical.” Lujan, 504 U.S. at 560.

Further, the Court finds that Plaintiffs’ alleged injuries satisfy the traceability and
redressability requirements. The injuries to Plaintiffs’ sovereign interests stem directly from
Defendants’ interpretations of Titles VII and IX as expressed in the challenged guidance
documents. That is, Plaintiffs were injured by the mere issuance of the challenged guidance.
Defendants’ guidance, not Titles VII or IX, directly interferes with Plaintiff States’ ability to
enforce their own laws and imposes substantial pressure on Plaintiffs to change their laws.

11 Defendants urge the Court to dismiss the other ten Plaintiffs that have not specifically identified state laws that
arguably conflict with the challenged guidance documents. [Doc. 49-1 at 13, n.1]. However, “when one party has
standing to bring a claim, the identical claims brought by other parties to the same lawsuit are justiciable.” Phillips,
836 F.3d at 714, n.2. Therefore, as all twenty Plaintiff States bring identical claims, this omission does not impact the
Court’s ability to reach the ten Plaintiff States that failed to specifically identify conflicting state laws.
Regarding redressability, the requested injunctive and declaratory relief would bar the effect of
Defendants’ interpretations and reduce the harm alleged. True, as Defendants note, a favorable
decision would not prevent private litigants from suing Plaintiffs based on their understanding of
Titles VII and IX. However, to satisfy the redressability requirement, Plaintiffs “need not show

that a favorable decision will relieve [their] every injury.” Parsons v. U.S. Dep’t of Just., 801 F.3d
701, 716 (6th Cir. 2015). If the Court were to enjoin Defendants from enforcing the guidance
against Plaintiffs, and ultimately found the challenged guidance to be unlawful, Plaintiffs’
sovereign interests would be protected.
In conclusion, the Court finds that Plaintiffs have satisfied Article III’s standing
requirement. Plaintiff States have demonstrated an injury in fact that is fairly traceable to the
challenged agency action and will likely be redressed by a favorable decision.
2. Ripeness
In addition to standing, Plaintiffs face another jurisdictional challenge—ripeness.
“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements over administrative
polices, and also to protect agencies from judicial interference until [an] administrative decision
has been formalized and its effects felt in concrete ways by challenging parties.’” Nat’l Park Hosp.
Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003) (quoting Abbott Laboratories v. Gardner,
387 U.S. 136, 148-49 (1967)). “Ripeness focuses on the timing of the action rather than on the
parties who bring suit.” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir.
1998).
Defendants argue that Plaintiffs’ claims are not ripe because there is no pending
enforcement action. [Doc. 48 at 28-29]. True, the challenged guidance has not yet been
enforced against any Plaintiff State. However, this fact does not require the Court to conclude
Plaintiffs’ claims are not ripe. Defendants’ argument ignores a long line of precedent allowing pre-
enforcement judicial review of agency actions. See Parke, Davis & Co. v. Califano, 564 F.2d 1200,
1204 (6th Cir. 1977) (“It cannot be argued since Abbott Laboratories that district courts are totally

without jurisdiction to conduct pre-enforcement review of agency actions.”); Ohio Forestry Ass’n,
Inc. v. Sierra Club, 523 U.S. 726, 733 (1998); Abbott Laboratories, 387 U.S. at 153-54; Toilet
Goods Ass'n v. Gardner, 387 U.S. 158 (1967); Kiser, 765 F.3d at 609 (internal citations omitted)
(“[A]dministrative action…may give rise to harm sufficient to justify pre-enforcement review.”);
Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1170-71 (6th Cir. 1983) (collecting
cases discussing pre-enforcement review of agency action); U.S. Telecom Ass’n v. F.C.C., 825
F.3d 674, 739 (D.C. Cir. 2016) (explaining that agency rules are “typically reviewable without
waiting for enforcement.”).
“[A]gency action under the Administrative Procedure Act is presumptively reviewable.”
Arizona, 2022 WL 2437870, at *9 (internal citations omitted); 5 U.S.C. §§ 701(a), 702. “Courts

confronted with close questions of ripeness are appropriately guided by the presumption of
reviewability, especially when the affected person is confronted with the dilemma of choosing
between disadvantageous compliance or risking imposition of serious penalties.” Ciba-Geigy
Corp. v. U.S.E.P.A., 801 F.2d 430, 434 (D.C. Cir. 1986) (citing Continental Air Lines, Inc. v.
C.A.B., 522 F.3d 107, 128 (D.C. Cir. 1974)). In analyzing the ripeness of pre-enforcement
agency action, courts consider two factors: “(1) the fitness of the issues for judicial decision and
(2) the hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538
U.S. at 808; Abbott Laboratories, 387 U.S. at 149.
a. Fitness for Judicial Decision
The first ripeness factor encompasses several considerations: (1) whether the questions
presented are purely legal; (2) whether further factual development would significantly advance
the court’s ability to deal with the legal issues presented; and (3) whether the agency’s action

constitutes final agency action. Nat’l Park Hosp. Ass’n, 538 U.S. at 804, 812; Prod. Credit Ass’n
of N. Ohio v. Farm Credit Admin., 846 F.3d 373, 375 (6th Cir. 1988); Ciba-Geigy Corp., 801 F.2d
at 435 (citing Abbott Laboratories, 387 U.S. at 149-52).
First, the parties dispute whether this case involves purely legal issues. Plaintiffs
maintain that the issues are purely legal, as their claims turn solely on the contents of the
guidance documents; thus, no further factual development is required for the Court to adjudicate
their claims. [Docs. 57 at 14, 58 at 27]. Defendants disagree, arguing “the question of whether
Titles VII or IX have been violated [] is an inherently fact-bound inquiry,” thus, “the question of
whether any Plaintiff State potentially has violated Title VII or Title IX would necessarily turn on
the facts of any given situation.” [Doc. 65 at 13-14].

Defendants’ argument mischaracterizes the issues in this case. The Court is not tasked
with determining whether any Plaintiff has violated Titles VII or IX (which would likely
require further factual development). Instead, the Court is asked to decide whether Defendants’
guidance, on its face, violates the APA and the Constitution due to alleged procedural and
substantive defects. That is, Plaintiffs raise a question as to the procedures Defendants needed to
follow before issuing the guidance and challenge the content of the guidance as being unlawful.
To resolve these issues, the Court need only consider the procedures Defendants followed in
issuing the guidance and the substantive content of the guidance itself in light of the Bostock
decision. As such, the Court finds this case raises purely legal issues that “would not be clarified
by further factual development.” Abbott Laboratories, 387 U.S. at 149.
It is not apparent how further factual development would significantly advance the Court’s
ability to resolve these issues. Defendants only suggest that further factual development is needed
because of the “fact-intensive nature of Titles VII and IX violations.” [Doc. 65 at 13-14]. But

again, the Court is not asked to determine whether any Plaintiff has violated Titles VII or IX.
Instead, the Court is asked to resolve facial challenges to Defendants’ guidance, and “[f]acial
challenges to a regulation are generally ripe the moment the challenged regulation is passed.”
Texas v. EEOC., No. 2:21-cv-194-Z, at 27 (N.D. Tex. May 26, 2022) (citing Suitum v. Tahoe Reg’l
Plan. Agency, 520 U.S. 725, 736 n.10 (1997)). The Court’s ability to resolve Plaintiffs’ facial
challenges to the guidance itself would not benefit from a concrete factual record. See Texas, No.
2:21-cv-194-Z at 28 (finding no need to wait for further factual development where plaintiff merely
raised a facial attack to EEOC guidance, as the issues did “not involve a particular enforcement
action…but challenge[d] the legality of a generally applicable rule”); Texas v. United States, 201
F. Supp. 3d 810, 824 (N.D. Tex. Aug. 21, 2016) (finding further factual development would not

significantly advance the courts ability to deal with the legal issues where “Defendants’ Guidelines
clash with Plaintiffs’ state laws and policies in relation to public school facilities and Plaintiffs
have called into question the legality of those Guidelines”).
Finally, as this Court explains in detail below, the challenged guidance documents
constitute final agency action. Infra at 25. Defendants’ guidance documents “mark the
consummation of the [respective] agency’s decision-making process” and purport to determine the
“rights or obligations” of those subject to Titles VII and IX, including Plaintiffs. Bennett v. Spear,
520 U.S. 154, 177-78 (1997) (internal citations omitted).
Based on the foregoing, the issues presented are fit for judicial decision, weighing in favor
of a finding that this case is ripe for adjudication.
b. Hardship
The second ripeness consideration is the hardship imposed on the parties in deferring
consideration by the Court. Defendants argue Plaintiffs face no hardship from the withholding of

judicial review at this juncture, as Plaintiffs would have a full opportunity to present their claims
in any future enforcement proceeding. [Doc. 49-1 at 14]. But “enforcement proceedings…are
concerned primarily, if not solely, with the factual issues of compliance” and this case does not
concern factual issues of compliance. Romeo Comm. Sch. v. U.S. Dept. of Health, Educ., and
Welfare, 438 F. Supp. 1021, 1028 (E.D. Mich. 1977). The Court is not persuaded that Plaintiffs
face no hardship simply because an enforcement action might provide them an opportunity to
assert their claims.
Plaintiffs contend that delaying review would cause them significant hardship, as
Defendants would be allowed to use the “fear of future sanctions” to “force immediate
compliance” with the challenged guidance. [Doc. 58 at 27] (internal citations omitted). Absent

judicial review, Plaintiffs claim they are put to the “choice of [] abandoning enforcement of their
laws or risking the loss of their federal [] funding.” [Doc. 57 at 14].
In deciding whether delayed review would cause hardship, courts consider whether the
agency’s action triggers an “immediate and significant change in the plaintiffs’ conduct of their
affairs with serious penalties attached to noncompliance.” Sch. Dist. of Pontiac v. Sec’y of U.S.
Dep’t of Educ., 584 F.3d 253, 263-64 (6th Cir. 2009) (quoting Suitum, 520 U.S. at 743-44); Abbott
Laboratories, 387 U.S. at 153. Courts consistently find sufficient hardship that warrants prompt
judicial review where plaintiffs must choose between compliance with allegedly unlawful agency
action at considerable expense and non-compliance at the risk of enforcement that would involve
a risk of substantial penalties. See Abbott Laboratories, 387 U.S. at 153-54 (finding hardship where
plaintiffs had to choose between compliance with a possibly unlawful regulation and non-
compliance at the risk of future enforcement that would entail substantial fines and reputational
losses); S.C. Elec. & Gas Co. v. I.C.C., 734 F.3d 1541, 1545 (D.C. Cir. 1984) (collecting cases)

(“The requisite ‘hardship’ may exist if an agency rule, although not yet enforced against the
complainant, compels the complainant to choose between compliance, at some present cost, and
failure to comply, at the risk of legal penalty.”).12
As demonstrated above, the harm alleged by Plaintiff States is already occurring—their
sovereign power to enforce their own legal code is hampered by the issuance of Defendants’
guidance and they face substantial pressure to change their state laws as a result. Supra at 12-14.
Because Defendants’ guidance purports to define the legal obligations of those subject to Titles
VII and IX, including Plaintiffs, and because Defendants have pledged to enforce Titles VII and
IX consistent with the guidance, Plaintiffs are left in a quandary. Supra at 13-14. Plaintiffs must
either forgo the enforcement of their conflicting state laws to comply with the allegedly unlawful

guidance or violate the guidance and risk significant legal consequences—an enforcement action,

12 See also Sch. Dist. of Pontiac., 584 F.3d at 263-64 (finding hardship where “school district Plaintiffs must decide
between drastic budget reallocation to comply with [No Child Left Behind] and serious statutory consequences”);
Nat’l Rifle Assoc. of Am. v. Magaw, 132 F.3d 272, 287 (6th Cir. 1997) (finding hardship where regulations forced the
plaintiffs to either terminate a line of business, make substantial expenditures to comply with the new rules, or willfully
violate the statute and risk serious penalties); Texas, 2:21-cv-194-Z (finding hardship where guidance forced plaintiff
to either change its employment policies to reflect the agency’s interpretation of Tile VII or risk civil liability); Neese
v. Becerra, 2022 WL 1265925, at *10 (N.D. Tex. Apr. 26, 2022) (finding hardship to the parties where “Plaintiffs
face[d] the fear of losing federal funds if they d[id] not act according to the interpretation of ‘sex’ described in the
[Department of Health and Human Services] Notification” issued as a result of President’s Executive Order); West
Virginia v. U. S. Dep’t of Treasury, 2021 WL 2952863, at *7 (N.D. Ala. July 14, 2021) (finding hardship where
plaintiff States either had to revise their laws or budget for possible recoupment of federal funding); Franciscan All.
v. Burwell, 227 F. Supp. 3d 660, 681 (N.D. Tex. 2016) (“Substantial hardship is typically satisfied when a party is
forced to choose between refraining from allegedly lawful activity or engaging in the allegedly lawful activity and
risking significant sanctions.”); Philip Morris USA Inc. v. U. S. Food & Drug Admin., 202 F. Supp. 3d 31, 48 (D.C.
Cir. 2016) (“Plainly, in light of the Guidance, tobacco companies are given a choice: either comply with the FDA’s
interpretation of the TCA…or risk a possible enforcement action. But, of course, that is no real choice at all. The
Guidance thus poses an immediate and significant practical hardship to Plaintiffs.”).
civil penalties, and the loss of federal funding.
This is an untenable choice. Supra at 14. There are significant stakes involved in a future
enforcement action. Plaintiff Tennessee has submitted declarations demonstrating these stakes.
During the 2020-2021 fiscal year, the Tennessee Department of Education received

$1,544,025,800 in federal funding, and Tennessee’s public higher educational institutions received
$88,354,400 in federal funding. [Doc. 11-1]. The loss of such critical federal funding would require
Tennessee to eliminate certain educational services or seek new funding sources to continue
offering the same programs. [Docs. 11-2, 11-3]. Furthermore, as an employer of 42,000
employees, the State of Tennessee faces considerable financial penalties for violating Title VII’s
prohibition on sex discrimination as defined in the challenged guidance. [Doc. 11-5].
Defendants contend Plaintiffs have “no idea whether or when” an enforcement action
will occur, and such uncertainty undermines ripeness. [Doc. 48 at 28] (citing Warshak v. United
States, 532 F.3d 521, 526 (6th Cir. 2008)). The Court finds that Plaintiffs have shown a credible
threat of enforcement. Plaintiffs highlight that private litigants are relying on Defendants’ guidance

to challenge Plaintiffs’ state laws. Indeed, Defendants filed a statement of interest in pending
litigation against the State of West Virginia, taking the position that Title IX prohibits the state
from “categorically exclud[ing] transgender girls from participating in single-sex sports restricted
to girls.” [Docs. 11 at 15, n.1, 1 at ¶ 71] (internal citations omitted). Plaintiffs also note that the
challenged guidance states Defendants will interpret and enforce Titles VII and IX in a manner
that conflicts with the laws Plaintiffs are currently enforcing, the guidance documents are aimed
at Plaintiffs, and Defendants have not disavowed enforcement. [Doc. 57 at 13]. Based on this
showing, the likelihood of an enforcement action is not as speculative as Defendants urge the Court
to believe.
Given the stakes of an enforcement action and the credible threat of enforcement, absent
judicial review at this juncture, Plaintiffs are left with no real option but to comply with guidance
they firmly believe is unlawful. And such compliance would be disadvantageous, as Plaintiffs
would be forced to abandon their duly enacted state laws. The Court finds delayed review would

cause hardship to Plaintiffs.
For the foregoing reasons, the Court finds that Plaintiffs’ claims are ripe for review. The
harm alleged by Plaintiffs is happening now, the issues presented are purely legal, and Plaintiffs
would suffer significant hardship should they be required to wait to adjudicate their claims.
B. Reviewability
Defendants challenge whether the guidance is reviewable under the Administrative
Procedure Act. [Doc. 49-1 at 16-22]. Specifically, Defendants contend that the Court cannot
review Plaintiffs’ APA claims because (1) the challenged guidance does not constitute final agency
action; (2) Plaintiffs have an adequate alternative remedy; and (3) Plaintiffs must adhere to Title
IX’s exclusive enforcement scheme. [Id.].

The APA limits judicial review to “final agency action for which there is no other
adequate remedy in a court.” Bangura v. Hansen, 434 F.3d 487, 500 (6th Cir. 2006) (citing 5
U.S.C. § 704). Thus, “[w]hether there has been ‘agency action’ or ‘final agency action’ within
the meaning of the APA are threshold questions; if these requirements are not met, the action is
not reviewable.” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir.
2006). As explained above, “agency action under the Administrative Procedure Act is
presumptively reviewable.” Supra at 18. “Agency positions are never absolutely final. There is
always some danger in accelerating the review process, and always some hardship in delaying
it….Any doubts [] are resolved by the presumption of reviewability which we have previously
said ‘permeates the Abbott Laboratories ruling.’” Continental Air Lines, Inc., 522 F.2d at 128
(collecting cases).
1. Final Agency Action
The parties dispute whether Defendants’ guidance documents constitute “final agency

action” under the APA. Final agency action is action that (1) “mark[s] the consummation of the
agency’s decision-making process” and (2) “by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’” Bennett, 520 U.S. at 177-78 (internal
citations omitted); Franklin v Massachusetts, 505 U.S. 788, 797 (1992) (“The core question is
whether the agency has completed its decision-making process, and whether the result of that
process is one that will directly affect the parties.”). The Court must apply the APA’s finality
requirement in a “flexible” and “pragmatic” way. U.S. Army Corps of Eng’rs v. Hawkes Co., 136
S. Ct. 1807, 1815 (2016); Abbott Laboratories, 387 U.S. at 149-50.
The first Bennett prong is not contested. That is, Defendants do not dispute that the
guidance documents mark the “consummation” of their decision-making processes. [Doc. 49-1 at

19-21]. As explained below, the Court finds that the second Bennett prong is also satisfied
because the challenged guidance determines the “rights and obligations” of those subject to Titles
VII and IX, including Plaintiffs.
In Arizona v. Biden, the Sixth Circuit summarized the relevant questions for a court to
consider in determining whether agency action is one “by which rights or obligations have been
determined, or from which legal consequences will flow”:
Will the agency’s action impose liability on a regulated party, create legal rights,
or mandate, bind or limit other government actors in the future? And will the
agency’s action have a sufficiently direct and immediate impact on the aggrieved
party and a direct effect on its day-to-day business? If an action maintains officials’
independent decisionmaking and can be discretionarily relied on, it likely lacks
legal effect. Through it all, we will not overlook whether the agency’s action puts
a party to a Catch-22, stuck between heavy compliance costs or feared liability,
neither of which can be undone.
2022 WL 2437870, at *7. (internal citations omitted). The Sixth Circuit has also noted that
“[j]udicially reviewable agency actions normally affect a regulated party’s possible legal
liability; these consequences tend to expose parties to civil or criminal liability for non-compliance
with the agency’s view of the law or offer a shelter from liability if the regulated parties comply.”
Parsons v. U.S. Dep’t. of Just., 878 F.3d 162, 167 (6th Cir. 2017) (quoting Louisiana v. U.S. Army
Corps of Engr’rs, 834 F.3d 574, 583 (5th Cir. 2016) (emphasis added)).
Similarly, in Ciba-Geigy Corporation, the United States Court of Appeals for the District
of Columbia Circuit, which frequently deals with challenges to agency action, explained that courts

must “look primarily to whether the agency’s position is ‘definitive’ and whether it has a ‘direct
and immediate…effect on the day-to-day business of the parties challenging the action.” 801 F.2d
at 436 (internal citations omitted). “These indicia of finality are ordinarily controlling because they
are highly probative of whether the agency’s position is merely tentative or, on the other hand,
whether the agency views its deliberative process as sufficiently final to demand compliance with
its announced position.” Id. “Once the agency publicly articulates an unequivocal position,
however, and expects regulated entities to alter their primary conduct to conform to that position,
the agency has voluntarily relinquished the benefit of postponed judicial review.” Id.
Defendants contend the challenged guidance documents are non-binding interpretations
that “simply inform the public of the agencies’ interpretation of Titles VII and IX, without

purporting to alter obligations thereunder.” [Doc. 49-1 at 19-21]. Defendants highlight that the
guidance documents expressly state they do not have the force of law. [Doc. 48 at 37-38]. The
Department’s Interpretation provides that it “does not itself determine the outcome in any
particular case or set of facts” and the EEOC’s Technical Assistance Document clarifies the
“contents of [the] document do not have the force and effect of law and are not meant to bind
the public in any way.” [Id.].
However, Defendants’ self-serving labels are not controlling. The Sixth Circuit has
explained that “the particular label placed upon [guidance] 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) (internal citations omitted) (emphasis
added). The Court must “consider whether the practical effects of an agency’s decision make it
final agency action, regardless of how it is labeled.” Columbia Riverkeeper v. U.S. Coast Guard,
761 F.3d 1084, 1094-95 (9th Cir. 2014); Arizona, 2022 WL 2437870, at *9 (“Labels, it is true, do
not control the inquiry. Legal effects do.”). “[A]n agency’s interpretation of its governing statute,
with the expectation that regulated parties will conform to and rely on this interpretation, is final
agency action fit for review.” Ciba-Geigy Corp., 801 F.2d at 438 (collecting cases).
After considering the substance and practical effects of the challenged guidance
documents, and the criteria for finality set forth above, the Court concludes that Defendants’

guidance determines the “rights or obligations” of those subject to Titles VII and IX and thus
constitute final agency action.
The text of the Department’s Interpretation indicates that the guidance is final. The
Interpretation authoritatively purports to interpret Title IX’s “on the basis of sex” language to
“encompass [] discrimination based on sexual orientation and gender identity.” [Doc. 1-2 at 3-4].
The Interpretation “will guide the Department in processing complaints and conducting
investigations” and the Department vows to “fully enforce Title IX” consistent with the
Interpretation. [Id.]. The Interpretation “supersedes and replaces any prior inconsistent statements
made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based
on sexual orientation or gender identity.” [Id.].
Additionally, the text of the Dear Educator Letter and Fact Sheet indicates that the
Department’s guidance is final agency action. The Dear Educator Letter alerts regulated entities
that the Department “will fully enforce Title IX to prohibit discrimination based on sexual

orientation and gender identity” and references an accompanying Fact Sheet for further
clarification. [Doc. 1-4]. The Fact Sheet provides “[regulated entities] have a responsibility to
investigate and address sex discrimination…against students because of their perceived or actual
sexual orientation or gender identity” and notes the Department “can [] provide information to
assist schools in meeting their legal obligations.” [Id.] (emphasis added).
The Interpretation, Dear Educator Letter, and Fact Sheet bind the Department, and alter
the rights and obligations of the regulated entities it oversees. The Interpretation articulates the
Department’s latest and final position regarding the scope of Title IX’s prohibition of
discrimination “on the basis of sex” and affirms that Title IX will be “fully enforce[d]” consistent
with that position. Because the Interpretation “supersedes and replaces any prior inconsistent

statement made by the Department,” the Department has spoken definitively on the issue in
dispute. The Interpretation dictates how the Department will enforce Title IX going forward and
requires the Department to investigate and pursue enforcement action against regulated entities,
including Plaintiffs, when discrimination based on sexual orientation and gender identity is
alleged.
Further, by expanding the scope of Title IX’s prohibition of discrimination “on the basis
of sex,” the Interpretation broadly determines the rights and obligations of entities that receive
federal funding under Title IX, including Plaintiffs. The Interpretation puts limitations on regulated
entities’ treatment of individuals based on their sexual orientation and gender identity, and the Fact
Sheet emphasizes that regulated entities have a “responsibility” and “legal obligation[]” to protect
students from sex discrimination. The Department clearly expects regulated entities to conform to
and rely on the guidance, as evidenced by its promise to “fully enforce” Title IX consistent with
the Interpretation, as well as the Department’s decision to directly alert regulated entities to its

understanding of Title IX with the Dear Educator Letter and Fact Sheet.
Similarly, the express language of the EEOC’s Technical Assistance Document indicates
that the guidance is final agency action. The Technical Assistance Document “provide[s] clarity
to the public regarding existing requirements under the law” and describes “the EEOC’s
established legal positions on sexual-orientation and gender-identity-related workplace
discrimination issues.” [Doc. 1-5 at 4] (emphasis added). The Technical Assistance Document
purports to speak authoritatively on specific conduct that constitutes discrimination based on
sexual orientation and gender identity. [Id. at 7-8]. The Technical Assistance Document provides
that regulated employers cannot “prohibit[] a transgender person from dressing or presenting
consistent with that person’s gender identity,” “deny an employee equal access to a bathroom,

locker room, or shower that corresponds to the employee’s gender identity,” and “intentionally
and repeatedly [use] the wrong name and pronouns to refer to a transgender employee.” [Id.].
The Technical Assistance Document concludes by informing applicants and employees how to
proceed if they believe their rights under Title VII have been violated, and promises that the
EEOC “will [then] conduct an investigation to determine if applicable [EEO] laws have been
violated.” [Id. at 8-9].
Though the EEOC maintains that the Technical Assistance Document does not alter
employers’ obligations under Title VII, it precisely does. The Technical Assistance Document
takes firm stances regarding what specific employer conduct constitutes impermissible sex
discrimination under Title VII. The Technical Assistance Document uses mandatory language,
thereby imposing obligations on covered employers to permit individuals to dress or present
consistent with their gender identity, and to allow individuals to use the bathrooms, locker
rooms, and showers consistent with their gender identity. The Technical Assistance Document

explains that employers’ failure to do so “would constitute sex discrimination” under Title VII.
Thus, rather than generally describing best practices for employers, the Technical Assistance
Document takes firm positions regarding what Title VII demands of employers.
Further, the Technical Assistance Document invites individuals to contact the EEOC if
they believe their rights under Title VII, as defined therein, have been violated; and the EEOC
has pledged to “conduct an investigation” when such sex discrimination is alleged. By inviting
individuals to file complaints of sex discrimination consistent with the guidance and requiring the
EEOC’s staff to investigate claims of sex discrimination related to the issues in the guidance, the
Technical Assistance Document “opens the field of potential plaintiffs” in a way that carries legal
consequences for employers. Texas, 933 F.3d at 443-44 (internal citations omitted) (finding EEOC

guidance carried legal consequences for employers where it was “to be used by ‘individuals who
suspect [] they have been denied jobs or promotions, or have been discharged’” in a manner
deemed unlawful by the guidance, as it “open[ed] the ‘field of potential plaintiffs’”). Applicants
and employees are instructed to rely on the Technical Assistance Document in deciding whether
to file a sex discrimination claim, and the Technical Assistance Document requires the EEOC’s
staff to assess sex discrimination claims consistent with the guidance. Thus, in practical effect, the
Technical Assistance Document requires employers to comply with its stated positions to avoid
liability.
Lastly, an overarching issue with the guidance documents also indicates Plaintiffs are
challenging final agency action. Both the Department and EEOC maintain that their respective
guidance documents are required by the Bostock decision. However, Defendants ignore the
limited reach of Bostock. The Bostock decision only addressed sex discrimination under Title
VII; the Supreme Court expressly declined to “prejudge” how its holding would apply to “other

federal or state laws that prohibit sex discrimination” such as Title IX. Bostock, 140 S. Ct. at
1753. Similarly, the Supreme Court explicitly refused to decide whether “sex-segregated
bathrooms, locker rooms, and dress codes” violate Title VII. Id. Bostock does not require
Defendants’ interpretations of Title VII and IX. Instead, Defendants fail to cabin themselves to
Bostock’s holding. Defendants’ guidance documents advance new interpretations of Titles VII
and IX and impose new legal obligations on regulated entities.13 Thus, as further explained below,
the challenged guidance documents are legislative rules; and “[l]egislative or substantive rules are,
by definition, final agency action.” Doe v. U.S. Customs & Border Protection, 2021 WL 980888,
at *9 (D.C. Cir. Mar. 16, 2021) (quoting Broadgate Inc. v. U.S. Citizenship & Immigration Servs.,
730 F.Supp.2d 240, 243 (D.C. Cir. 2010)).

Under the Supreme Court’s instruction to approach finality in a flexible and pragmatic
way, the Court finds that Defendants’ guidance documents constitute final agency action subject
to judicial review under the APA. As demonstrated above, both Bennett prongs for final agency
action are satisfied. First, it is undisputed that Defendants’ guidance documents “mark the
consummation of the agency’s decision-making process.” Bennett, 520 U.S. at 177-78 (internal
citations omitted). Second, the guidance documents purport to determine the rights and

13 Cf. Menominee Indian Tribe of Wisconsin v. EPA, 947 F.3d 1065, 1070 (7th Cir. 2020) (“Letters restating earlier
interpretations likewise do not carry legal consequences for purposes of the ‘final agency action’ requirement.”);
Clayton Cnty., Georgia v. Fed. Aviation Admin., 887 F.3d 1262, 1267 (11th Cir. 2018) (“An agency’s restatement of
an already-existing policy or interpretation does not, on its own, determine any rights or obligations and imposes no
legal consequences.”); Gen. Motors Corp. v. EPA, 363 F.3d 442, 449-51 (D.C. Cir. 2004) (holding that a letter from
an agency that reflected “neither a new interpretation nor a new policy” did not “impose new obligations”).
obligations of those subject to Titles VII and IX, including Plaintiffs, and Defendants have left
no doubt that they intend to enforce their respective governing statutes consistent with the
guidance. Id.
2. Adequate Remedy

Defendants contend that the APA’s alternative remedy provision precludes Plaintiffs from
bringing this standalone action. [Doc. 48 at 31]. As to the “no other adequate remedy in court”
prerequisite, “[t]he essential inquiry is whether another statutory scheme of judicial review exists
so as to preclude review under the more general provisions of the APA.” Bangura v. Hansen, 434
F.3d 487, 501 (6th Cir. 2006). This requirement “[e]nsures that the APA’s general grant of
jurisdiction to review agency decisions is not duplicative of more specific statutory procedures for
judicial review.” Id. The “adequate remedy” limitation on APA review is interpreted narrowly,
such that it 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).
Defendants argue Plaintiffs have an adequate alternative remedy, as their claims can be

asserted in defense of any future enforcement action under Titles VII or IX. [Doc. 48 at 31-32].
Plaintiffs disagree, claiming an ability to raise their claims as defenses in a future enforcement
action is not the kind of adequate remedy contemplated by the APA. [Doc. 57 at 15]. Plaintiffs
cite Sackett v. EPA, 566 U.S. 120, 127 (2012), in support of their position. [Id.].
In Sackett, the Supreme Court allowed a pre-enforcement challenge to an Environmental
Protection Agency (“EPA”) compliance order even though “judicial review ordinarily comes by
way of civil action brought by the EPA.” 566 U.S. at 127. The Court held that “APA review” was
the only “adequate remedy” because the plaintiffs could not “initiate [an enforcement action]” and,
instead, had to “wait for the Agency to drop the hammer” while they accrued potential liability
pursuant to the Clean Water Act. Id. at 127, 131; see also U.S. Army Corps of Eng’rs., 578 U.S. at
600 (internal citations omitted) (“Respondents need not assume [the risk of exposure to civil
penalties] while waiting for EPA to ‘drop the hammer’ in order to have their day in court.”).14
Plaintiffs argue that the same logic applies here; the Court agrees. Defendants’ guidance

documents impose legal obligations on Plaintiff States; and Plaintiffs are left in a quandary as a
result. True, Plaintiffs could raise their same arguments as defenses in a future enforcement
proceeding. But also true, and undisputed, Plaintiffs cannot initiate an enforcement proceeding to
have their claims heard. Instead, Plaintiffs must “wait for [Defendants] to drop the hammer” by
electing to commence enforcement proceedings; and Plaintiffs are exposed to potential liability
for failing to comply with their purported legal obligations, as explained in the challenged
guidance, in the interim. Id. at 127, 131.
Defendants believe Sackett is distinguishable, arguing Plaintiffs “face no immediate
consequences that would justify raising their arguments in a pre-enforcement challenge.” [Doc.
65 at 15]. In Sackett, legal consequences flowed from the Government’s compliance order, as it

exposed the landowners to increased financial penalties in a subsequent civil enforcement
proceeding. 566 U.S. at 126-27. Plaintiffs do not face consequences as concrete as those in
Sackett, as Defendants have not determined whether any Plaintiff State has violated Titles VII
or IX. Nevertheless, the challenged guidance documents do impose an immediate hardship on
Plaintiffs. That is, Plaintiffs face obligations and consequences as a result of the challenged
guidance. As the Court previously explained, the challenged guidance documents purport to

14 Similarly, other courts have declined to find an “adequate remedy” within the meaning of the APA when a plaintiff
cannot initiate alternative proceedings against an agency but, instead, must wait for the agency to pursue such
proceedings. Texas, 2:21-cv-194-Z; Neese, 2022 WL 1265925, at *11; Hyatt v. Off. of Mgmt. & Budget, 908 F.3d
1165, 1173 (9th Cir. 2018); Furie Operating Alaska, LLC v. U.S. Dep’t. of Homeland Sec., 2013 WL 1628639, at *6
(D. Alaska Apr. 15, 2013); Martinez v. Dep’t of Homeland Sec., 502 F. Supp. 2d 631, 635-36 (E.D. Mich. 2007).
establish legal obligations that conflict with Plaintiffs’ state laws and current practices. Thus,
Plaintiffs must choose to either: (1) alter their primary conduct and comply with the guidance—
against their own interests and policies; or (2) violate the guidance at the risk of incurring
significant financial penalties (i.e., lost federal funding and civil fines) while waiting for

Defendants to “drop the hammer.”
Defendants also direct the Court to two cases from the Sixth Circuit to support their
position that a future enforcement action is an adequate remedy for Plaintiffs. In Quicken Loans
Inc. v. United States, the court found that an enforcement action would adequately provide an
opportunity for the plaintiff to be heard on its claims. 152 F. Supp. 3d 938, 950 (E.D. Mich. Dec.
31, 2015). And in Parke, Davis, & Co. v. Califano, the Sixth Circuit held the plaintiff had an
adequate remedy because “every issue raised in [the present] case…could have been raised in
enforcement proceedings.” 564 F.2d at 1205-06. But, in both cases, enforcement proceedings
were concurrent with the litigation. 152 F. Supp. 3d at 944, 954; 564 F.3d at 1205-06. Unlike
Plaintiffs, the injured parties in Quicken and Parke Davis had a present opportunity to challenge

the agency action in ongoing enforcement proceedings; they were not forced to wait for an
enforcement proceeding to begin.
The Court finds that Plaintiffs do not have an adequate alternative remedy within the
meaning of the APA. As the Supreme Court recognized in both Sackett and U.S. Army Corps
of Engineers, helplessly awaiting the initiation of enforcement proceedings by Defendants and
risking potential liability in the interim is not an adequate remedy under the APA. 566 U.S. at
127; 578 U.S. at 600.
3. Exclusive Enforcement Scheme
Finally, Defendants contend that this Court’s review of Plaintiffs’ Title IX claims is
precluded because Congress has “provided an elaborate procedural scheme for administrative
enforcement proceedings under Title IX that culminates in the opportunity for judicial review.”
[Doc. 49-1 at 17-18] (citing Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994)).15 In

support of their argument, Defendants rely heavily on Thunder Basin, which held that when a
statute provides for direct appellate review “of final agency actions, [courts] shall find that
Congress has allocated initial review to an administrative body [when] such intent is ‘fairly
discernible in the statutory scheme.’” Id. at 207 (internal citation omitted)).
The right to judicial review under the APA extends to agency actions “except to the
extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency
discretion by law.” Heckler v. Chaney, 470 U.S. 821, 828 (1985) (quoting 5 U.S.C. § 701(a)).
The “strong presumption” favoring judicial review of agency action “fails when a statute’s
language or structure demonstrates that Congress wanted an agency to police its own conduct.”

Mach Mining, LLC, v. EEOC, 135 S. Ct. 1645, 1651 (2015). The Court must consider the “statute’s
language, structure, and purpose, its legislative history, and whether the claims can be afforded
meaningful review.” Thunder Basin, 510 U.S. at 207 (internal citations omitted). Applying this
analysis to the relevant review scheme, the Court concludes Title IX does not preclude judicial
review of Plaintiffs’ pre-enforcement challenge to the Department’s guidance documents.
20 U.S.C. § 1682 authorizes the Department to issue “rules, regulations, or orders of
general applicability” to effectuate the purposes of Title IX. Additionally, 20 U.S.C. § 1682
authorizes the Department to seek compliance with such rules, regulations, or orders by (1)

15 During oral argument, Defendants acknowledged that this argument is only advanced as to Plaintiffs’ Title IX
claims.
terminating or refusing to grant federal funding; or (2) any other means authorized by law.16 20
U.S.C. § 1683 is the only provision of Title IX that addresses judicial review, providing “[a]ny
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…” and “[i]n the case of action, not otherwise

subject to judicial review…any person aggrieved (including any State or political subdivision
thereof…) 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…”
As evidenced above, the express language of Title IX does not foreclose all judicial
review. Section 1683 only provides for judicial review of any action taken pursuant to § 1682.
That is, Congress only expressly provided for judicial review following an administrative decision
to terminate or refuse funding or to seek compliance by other lawful means. Here, however,
Plaintiffs challenge the issuance of “rules, regulations, or orders of general applicability,” and
the language in § 1683 does not limit judicial review of such claims. Nothing in the language or

structure of Title IX indicates Congress intended to limit judicial review of the Department’s
issuance of “rules, regulations, or orders of general applicability”, or that the Department should
be allowed to police its own conduct. Therefore, pursuant to § 1683, such action is “subject to
judicial review as…provided by law for similar action.” The APA, as the statute establishing
procedures and guidelines for agency rulemaking, functions as the vehicle for pre-enforcement
challenges to agency rules and regulations. 5 U.S.C. § 702.

16 34 C.F.R. § 100.8 provides that “other means” may include, but are not limited to, (1) a reference to the DOJ with
a recommendation that appropriate proceedings be brought; and (2) any applicable proceeding under State or local
law.
Defendants have failed to provide the Court with any binding authority holding that
Congress intended to preclude pre-enforcement judicial review of the Department’s “rules,
regulations, or orders of general applicability” under Title IX. And, as Plaintiffs note, several
courts have concluded that Title IX’s enforcement scheme does not preclude such review. See

Texas, 2:21-cv-194-Z at 15-16; Texas, 201 F. Supp. 3d at 826-27; Romeo Cmty. Sch., 438 F.
Supp. at 1029 (allowing pre-enforcement challenge to regulations because Title IX’s “legislative
scheme explicitly contemplates a cause of action under the [APA] for redress of unlawful agency
action ‘not otherwise subject to judicial review’”)
“[W]here substantial doubt about [] congressional intent exists, the general presumption
favoring judicial review of administrative action is controlling.” Texas v. United States, 809 F.3d
134, 164 (5th Cir. 2015) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984)). Given
the applicable presumption of reviewability and the fact that Title IX contains no explicit or
implicit bar to judicial review of the Department’s rules, regulations, and orders of general
applicability, the Court finds that Plaintiffs’ pre-enforcement challenges to the Department’s

guidance documents are subject to judicial review.
C. Preliminary Injunction Factors
The Court next evaluates whether a preliminary injunction is appropriate in this case. To
do so, the Court must consider: (1) whether Plaintiffs have shown a likelihood of success on the
merits; (2) whether Plaintiffs will be irreparably injured absent an injunction; (3) whether issuing
an injunction will harm Defendants; and (4) whether an injunction is in the public interest. Vitolo,
999 F.3d at 360. For the reasons below, the Court finds that a balance of these factors weighs in
favor of a preliminary injunction. The Court understands a “preliminary injunction is an
extraordinary remedy.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008).
However, this case presents extraordinary circumstances.
1. Likelihood of Success on the Merits
In maintaining that the challenged guidance documents are unlawful, Plaintiffs advance
several theories. However, to obtain injunctive relief, Plaintiffs need only demonstrate a likelihood

of success on the merits of one of their claims. Hoover Transp. Servs., Inc. v. Frye, 77 F. App’x
776, 781 (6th Cir. 2003) (“If [the moving party] can show a likelihood of success on the merits of
any of the claims, an injunction may issue, subject to consideration of the other factors.”); Planned
Parenthood of Great Nw., Hawaii, Alaska, Indiana, & Kentucky, Inc. v. Cameron, 2022 WL
1597163, at *4 (W.D. Ky. May 19, 2022) (collecting cases) (“The moving party need only show a
likelihood of success on the merits of one claim where there are multiple claims at issue in a
complaint.”); Woods v. Lynch, 2016 WL 7192151, at *3 (W.D. Tenn. Dec. 12, 2016) (finding a
likelihood of success on the merits of at least one of the moving party’s claims was sufficient).
Plaintiffs contend Defendants’ guidance documents violate the APA, as they are
procedurally and substantively deficient. [Doc. 11]. Plaintiffs argue that Defendants’ guidance

documents are procedurally invalid because (1) they were adopted without adhering to the required
notice and comment procedures and (2) they are arbitrary and capricious. [Id.]. Plaintiffs argue
Defendants’ guidance documents are substantively unlawful, as they are contrary to law. [Id.].
Defendants contest each of these claims. [Doc. 48].
The Court begins, and ends, with assessing Plaintiffs’ notice and comment claim. “The
APA sets different procedural requirements for ‘legislative rules’ and ‘interpretive rules’: the
former must be promulgated pursuant to notice-and-comment rulemaking; the latter need not.”
Tenn. Hosp. Ass’n v. Azar, 908 F.3d 1029, 1042 (6th Cir. 2018) (citing Perez v. Mortg. Bankers
Ass’n, 135 S. Ct. 1199, 1203-04 (2015); 5 U.S.C. § 553(b)(A)). “If an agency attempts to issue a
legislative rule without abiding by the APA’s procedural requirements, the rule is invalid.” Id.
(citing S. Forest Watch, Inc. v. Jewell, 817 F.3d 965, 972 (6th Cir. 2016)).
When issuing a legislative rule, “[an] agency must publish a notice about the proposed
rule, allow the public to comment on the rule, and, after considering the comments, make

appropriate changes and include in the final rule a ‘concise general statement’ of its contents.”
Mann Constr., Inc. v. United States, 27 F.4th 1138, 1142-43 (6th Cir. 2022) (quoting 5 U.S.C. §
553). “Notice and comment gives affected parties fair warning of potential changes in the law
and an opportunity to be heard on those changes—and it affords the agency a chance to avoid
errors and make a more informed decision.” Id. (quoting Azar v. Allina Health Servs., 139 S. Ct.
1804, 1816 (2019)).
Unsurprisingly, Defendants argue that the challenged guidance documents are valid
interpretative rules exempt from notice and comment procedures, and Plaintiffs argue that the
challenged guidance documents are legislative rules subject to the notice and comment
requirements. As the Sixth Circuit recently highlighted, “[t]he distinction between a legislative

rule and an interpretive rule can be difficult to discern.” Id. Nevertheless, relying on binding
precedent, the Sixth Circuit explained:
“[L]egislative rules have the force and effect of law and interpretive rules do not.
Thus, a rule that intends to create new law, rights, or duties, is legislative, while a
rule that simply states what the administrative agency thinks the statute means, and
only reminds affected parties of existing duties is interpretive. 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.”

Id. (internal citations omitted); see also Gen. Motors Corp v. Ruckelshaus, 742 F.2d 1561, 1565
(D.C. Cir. 1984) (“An interpretative rule simply states what the administrative agency thinks the
statute means” in a way that “only reminds affected parties of existing duties.”) (emphasis
added); NRDC v. Wheeler, 955 F.3d 68, 83 (D.C. Cir. 2020) (“A legislative rule is one that has
legal effect or, alternately, one that an agency promulgates with the intent to exercise its
delegated legislative power by speaking with the force of law.”). The key question for the Court
to consider is whether the action in question simply interprets existing law or results in a

substantive change to existing law.
In light of these general principles, the Court finds that Plaintiffs have demonstrated a
likelihood of success on the merits of their notice and comment claim. Plaintiffs can establish
that Defendants’ challenged guidance documents are legislative rules that create new rights
and obligations, and Defendants do not contend that they complied with the APA’s notice and
comment requirements.
In arguing that the challenged guidance documents are not legislative rules, Defendants
claim that the guidance documents merely interpret Titles VII and IX consistent with Bostock.
[Doc. 48 at 37-38]. However, Defendants’ guidance documents are not confined to the Bostock
decision.

Plaintiffs contend that the Department of Education’s guidance documents improperly
expand the reach of Bostock. As the Sixth Circuit recently explained, “the Court in Bostock was
clear on the narrow reach of its decision and how it was limited only to Title VII itself. The
[Bostock] Court noted that ‘none of’ the many laws that might be touched by their decision were
before them and that they ‘do not prejudge any such question today.’” Pelcha v. MW Bancorp,
Inc., 988 F.3d 318, 324 (6th Cir. 2021) (quoting Bostock, 140 S. Ct. at 1753). Thus, the Sixth
Circuit concluded “Bostock extends no further than Title VII.” Id. The Sixth Circuit has also
recognized, “it does not follow that principles announced in the Title VII context automatically
apply in the Title IX context.” Meriwether v. Hartop, 922 F.3d 492, 510 n.4 (6th Cir. 2021).
Therefore, in applying Bostock to Title IX, the Department overlooked the caveats expressly
recognized by the Supreme Court and created new law. The Department’s guidance purports to
expand the footprint of Title IX’s “on the basis of sex” language, takes definitive positions as
to “legal obligations” under Title IX, and explains that Title IX will be “fully enforce[d]”

accordingly. [Docs. 1-2, 1-4]. Indeed, the Department’s challenged guidance documents go
beyond putting the public on notice of pre-existing legal obligations and reminding affected parties
of their existing duties.
Plaintiffs further contend that the Department’s guidance “squarely conflicts with both
Title IX itself and its implementing regulations, which expressly permit sex-separated living
facilities and athletic teams.” [Doc. 57 at 22] (citing 20 U.S.C. § 1686, 34 C.F.R. §§ 106.33,
106.37(c), 106.41(b)). True, Title IX does allow for sex-separation in certain circumstances; and
the Department’s guidance, specifically the Fact Sheet, appears to suggest such conduct will be
investigated as unlawful discrimination. [Doc. 1-4] (explaining Defendants can investigate a
principal barring a high school transgender girl (i.e., a biological male) from entering the girls’

restroom and a coach turning her away from an all-girls sports tryout as unlawful sex
discrimination under Title IX). Thus, Defendants’ guidance plausibly “adopt[s] a new position
inconsistent with…[the Department’s] existing regulations,” supporting the conclusion that the
Department’s guidance is legislative. Tenn. Hosp. Ass’n., 908 F.3d at 1042 (quoting Shalala v.
Guernsey Mem’l Hosp., 514 U.S. 87, 100 (1995)).
Therefore, as explained above, Plaintiffs can show that the Department of Education’s
guidance creates rights for students and obligations for regulated entities not to discriminate
based on sexual orientation or gender identity that appear nowhere in Bostock, Title IX, or its
implementing regulations. Accordingly, it follows that Plaintiff States can demonstrate the
Department’s guidance documents are legislative rules. See Morton v. Ruiz, 415 U.S. 199, 232
(1974) (holding that a substantive rule or “a legislative-type rule,” is one that “affect[s] individual
rights and obligations.”); see also Texas, 201 F. Supp. 3d at 829-30 (concluding that similar
guidance issued by the Department of Education was legislative).

Likewise, the EEOC’s Technical Assistance Document goes beyond the holding of
Bostock. The Supreme Court only held that Title VII prohibits an employer from “fir[ing]
someone simply for being homosexual or transgender.” Bostock, 140 S. Ct. at 1753. The Court
expressly declined to “prejudge” other issues that might be implicated by Title VII, such as “sex-
segregated bathrooms, locker rooms, and dress codes.” Id. Interestingly, the Technical Assistance
Document recognizes that “[Bostock] explicitly reserved some issues for future cases.” [Doc. 1-5
at 5]. Yet, the Technical Assistance Document then purports to explain what Title VII requires of
covered employers with regard to the exact conduct Bostock declined to address (i.e., bathrooms,
locker rooms, dress codes). [Id. at 7-8]. The EEOC’s guidance identifies and creates rights for
applicants and employees that have not been established by federal law, and it directs employers

to comply with those obligations to avoid liability.17 See Bear Creek Bible Church v. Equal Emp.
Opportunity Comm’n, 2021 WL 5449038, at *13 (N.D. Tex. Nov. 22, 2021) (reaching the same
conclusion about the EEOC guidance at issue). As such, the Court concludes that Plaintiffs can

17 Defendant EEOC contends the Technical Assistance Document is not legislative, as it is based, in part, on “its
previous administrative decisions.” [Doc. 65 at 23]. However, the EEOC’s prior decisions concerning sexual
orientation and gender identity are not binding authority and cannot be considered definitive interpretations of Title
VII. Lee v. City of Columbus, Ohio, 636 F.3d 245, 256 (6th Cir. 2011); White v. Burlington Northern & Santa Fe R.
Co., 364 F.3d 789, 812 (6th Cir. 2004) (Clay, E. concurring); Young v. Dep’t of the Treasury, 2020 WL 3980796, at
*9 (W.D. Tenn. Apr. 9, 2020) (collecting cases) (“Although not binding authority, the EEOC’s decisions and
regulations are persuasive.”); Brown v. Subway Sandwich Shop of Laurel, Inc., 2016 WL 3248457 (S.D. Miss. June
13, 2016) (collecting cases) (explaining that EEOC’s prior decisions did not require the court to conclude that
discrimination based on sexual orientation is prohibited by Title VII). Therefore, until the Sixth Circuit or the Supreme
Court recognizes the opinions expressed in the EEOC’s prior decisions (i.e., that Title VII prohibits discrimination
based on sexual orientation and gender identity with respect to bathrooms, locker rooms, and dress codes) such rights
and obligations have not been established under federal law.
demonstrate the EEOC’s Technical Assistance Document is a legislative rule. Morton, 415 U.S.
at 232.
Thus, Plaintiffs have demonstrated that they are likely to succeed on their claim that
Defendants’ guidance documents are legislative rules and that the guidance is invalid because

Defendants failed to comply with the required notice and comment procedures under the APA.
Accordingly, this first preliminary injunction factor weighs in Plaintiffs’ favor.
2. Irreparable Harm
The second preliminary injunction factor asks whether the movant “is likely to suffer
irreparable harm in the absence of preliminary relief.” Platt v. Bd. of Comm’rs on Grievances &
Discipline of the Ohio Sup. Ct., 769 F.3d 447, 453 (6th Cir. 2014) (quoting Winter v. Nat. Res.
Defense Council, Inc., 555 U.S. 7 (2008)). “A plaintiff’s harm from the denial of a preliminary
injunction is irreparable if it is not fully compensable by monetary damages.” Overstreet v.
Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (citing Basicomputer
Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992)).

Plaintiffs claim “a State ‘suffers a form of irreparable injury’ any time it is prevented
from ‘effectuating statutes enacted by representatives of its people.’” [Doc. 11 at 33] (quoting
Thompson v. DeWine, 976 F.3d 610, 619 (6th Cir. 2020)). However, the Sixth Circuit held that
States suffer irreparable harm when enjoined from enforcing their laws. Thompson, 976 F.3d at
619 (quoting Maryland v. King, 567 U.S. 1301 (2012)). Here, no party seeks to enjoin Plaintiff
States from enforcing their laws; rather, the States themselves are pursuing injunctive relief against
Defendants.
Nevertheless, as a practical matter, the interest in this case is the same. Plaintiffs have
sovereign interests in enforcing their duly enacted state laws. Supra at 11. Plaintiffs suffered an
immediate injury to their sovereign interests when Defendants issued the challenged guidance, as
Defendants’ guidance and several of Plaintiffs’ statutes conflict. Absent an injunction, Plaintiff
States’ ability to enforce their conflicting state laws will remain hampered, and Plaintiffs will
continue to face substantial pressure to change their state laws in order to avoid material legal

consequences.
Therefore, the Court finds that Plaintiffs have carried their burden to show irreparable
harm. See Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018) (noting that a state’s “inability to
enforce its duly enacted plans clearly inflicts irreparable harm on the State”); Kentucky v. Biden,
23 F.4th 585, 611 n. 19 (6th Cir. 2022) (explaining that “invasions of state sovereignty…likely
cannot be economically qualified, and thus cannot be monetarily redressed”); Kansas v. United
States, 249 F.3d 1213, 1227-28 (10th Cir. 2001) (finding irreparable harm to the State where
federal agency’s action “places its sovereign interests and public policies at stake”); Texas, 201
F. Supp. at 834-35 (finding irreparable harm under similar circumstances). This second
preliminary injunction factor weighs in Plaintiffs’ favor.

3. Harm to Others
Defendants argue that granting an injunction will impede their ability to eliminate
discrimination in the educational and workplace settings, prevent them from explaining their
understanding of the requirements imposed by Titles VII and IX, and leave confusion about
regulated entities’ legal obligations. [Doc. 48 at 50].
There is no question that an injunction will harm Defendants, as they will be prevented
from “fully enforc[ing]” the challenged guidance like they vowed to do. However, because
Plaintiffs have demonstrated a substantial likelihood of success on the merits of at least one of
their claims, it is doubtful that Defendants should be allowed to enforce the challenged
guidance against Plaintiffs in the interim. Defendants do not have a legitimate interest in
enforcing the guidance documents that Plaintiffs have shown are likely to be procedurally
invalid.
Because the challenged guidance documents affect the sovereign rights of Plaintiff

States, and because this case raises substantial questions regarding the validity of that guidance,
the Court finds the harm to Plaintiffs outweighs any harm the preliminary injunction might cause
Defendants. Therefore, this third factor weighs in favor of a preliminary injunction.
4. Public Interest
The Sixth Circuit has made clear that the “public’s true interest lies in the correct
application of the law.” Kentucky, 23 F.4th at 612; Priorities USA v. Nessel, 860 F. App’x. 419,
422-23 (6th Cir. 2021) (quoting Coal. to Def. Affirmative Action v. Granholm, 473 F.3d 237, 252
(6th Cir. 2006) (“[T]he public interest lies in correct application of the federal constitutional and
statutory provisions upon which the claimants have brought this claim.”)). Defendants certainly
have a public interest in enforcing Titles VII and IX to the fullest extent permissible. Likewise,

Plaintiffs undoubtedly have a strong public interest in enforcing their duly enacted state laws and
protecting the underlying policies. It is clear these interests conflict. The Court understands that
both sides feel strongly about their positions on the relevant legal and social policy questions, and
the public’s interest in the correct application of the law will be served by maintaining the status
quo while the Court resolves these issues.
Furthermore, as this Court has explained, the public has an interest in “agencies
promulgating rules that have the effect of law through procedures mandated by Congress
through the APA.” CIC Servs., LLC v. Internal Revenue Serv., 2021 WL 4481008, at *6 (E.D.
Tenn. Sept. 21, 2021); see also N. Marina Islands v. United States, 686 F. Supp.2d 7, 21 (D.C. Cir.
2009) (“The public interest is served when administrative agencies comply with their obligations
under the APA.”). Because there are questions as to Defendants’ compliance with the APA, the
public would benefit from a preliminary injunction. An injunction will ensure that the agencies are
not exceeding their express authority delegated by Congress.

Accordingly, the Court finds that the fourth factor weighs in favor of a preliminary
injunction.
IV. CONCLUSON
For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction [Doc. 10] is
GRANTED and Defendants’ Motion to Dismiss [Doc. 49] is DENIED. Accordingly, it is
hereby ordered that Federal Defendants and all their respective officers, agents, employees,
attorneys, and persons acting in concert or participation with them are ENJOINED and
RESTRAINED from implementing the Interpretation, Dear Educator Letter, Fact Sheet, and
the Technical Assistance Document against Plaintiffs.18
This preliminary injunction shall remain in effect pending the final resolution of this

matter, or until further orders from this Court, the United States Court of Appeals for the Sixth
Circuit, or the Supreme Court of the United States.
It is further ORDERED that no security bond shall be required under Federal Rule of
Civil Procedure 65(c).

18 Plaintiffs fail to explicitly address the proper scope of the requested preliminary injunction in their briefing.
However, Plaintiffs appear to believe this injunction should apply nationwide. In his recent concurrence, the Chief
Judge of the Sixth Circuit cautioned against nationwide injunctions. See Arizona, 2022 WL 2437870, at *14 (“At a
minimum, a district court should think twice—and perhaps twice again—before granting universal anti-enforcement
injunctions against the federal government.”) The Court is heavily persuaded by this concurrence and concludes that
this preliminary injunction should only apply to Plaintiffs. The Court has no way of determining whether the States
not before it wish for the challenged guidance documents to be enforced, and a nationwide injunction might “give
[those] States victories they did not earn and…they do not want.” Id. The Court will not burden the States that did not
join this litigation.
SO ORDERED.
/s/ Charles E. Atchley Jr.____________
CHARLES E. ATCHLEY JR.
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10435087. Public record. Not legal advice.