pr23 05 Brief

Case: 22-5807 Document: 39 Filed: 01/24/2023 Page: 1
No. 22-5807
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
______________
STATE OF TENNESSEE, et al.,

Plaintiffs-Appellees,
and
ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, et al.,

Intervenors-Appellees,
v.
DEPARTMENT OF EDUCATION, et al.,

Defendants-Appellants.
______________
On Appeal from the United States District Court for the

Eastern District of Tennessee
(No. 3:21-cv-00308)
BRIEF OF ALL PLAINTIFFS-APPELLEES

OTHER THAN STATE OF ARIZONA
JONATHAN SKRMETTI CLARK LASSITER HILDABRAND

Attorney General and Reporter Assistant Solicitor General
of the State of Tennessee Counsel of Record
ANDRÉE S. BLUMSTEIN STEVEN J. GRIFFIN
Solicitor General Assistant Attorney General
P.O. Box 20207

Nashville, TN 37202
(615) 253-5642
Clark.Hildabrand@ag.tn.gov
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
STATEMENT OF JURISDICTION..........................................................................2
STATEMENT OF THE ISSUES...............................................................................3
INTRODUCTION .....................................................................................................3
STATEMENT OF THE CASE ..................................................................................7
A. Bostock’s Narrow Title VII Decision and Initial Response .......................7
B. President Biden’s Executive Order and Challenged Documents ...............8
1. Department of Education Interpretation and Fact Sheet ...................8
2. EEOC Technical Assistance Document ............................................9
C. District Court Decision .............................................................................10
SUMMARY OF ARGUMENT ................................................................................13
STANDARD OF REVIEW ......................................................................................14
ARGUMENT ............................................................................................................15
I. The District Court Correctly Ruled That Plaintiff States Have Standing to
Challenge the Department’s Interpretation and Fact Sheet ...........................15
A. The Interpretation and Fact Sheet injure Plaintiff States..........................15
1. At least 16 States’ laws arguably conflict with the guidance ..............16
2. The injuries to the States are real, not abstract ....................................19
B. Plaintiffs’ injuries are traceable to the Interpretation and Fact Sheet and
redressable by the relief sought in this case .............................................21
II. The District Court Did Not Abuse Its Discretion by Enjoining Defendants
from Implementing the Interpretation and Fact Sheet Against Plaintiffs ....25
i
A. Plaintiff States’ claims are reviewable ....................................................25
1. The Interpretation and Fact Sheet are final agency actions ..............25
2. Plaintiffs lack an adequate alternative remedy .................................30
3. Title IX does not provide an exclusive enforcement structure that

precludes jurisdiction ........................................................................31
B. Plaintiffs are likely to prevail on their procedural APA

claims………………………………………………………………..34
1. The Interpretation and Fact Sheet are legislative rules issued without
notice and comment ...........................................................................34
2. The Interpretation and Fact Sheet are arbitrary and capricious..........38
C. Plaintiffs are likely to succeed on their claims that the Interpretation

and Fact Sheet are contrary to law .....................................................39
1. The Interpretation and Fact Sheet are contrary to Title IX ...............39
2. The Interpretation and Fact Sheet violate the U.S. Constitution .......44
D. Preliminary relief from the Interpretation and Fact Sheet prevents

irreparable harm and furthers the public interest ...................................46
E. The district court did not abuse its discretion by preliminarily protecting
all Plaintiff States ...................................................................................49
III. This Court Should Dismiss as Moot Defendants’ Appeal of the Preliminary
Injunction of the Technical Assistance Document ..........................................52
A. The proper judgment is dismissal of the voluntarily mooted appeal ..........52
B. Plaintiffs had standing to challenge the EEOC’s guidance .........................54
CONCLUSION ........................................................................................................57
ADDENDUM ....................................................................................................... A-1
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ...................................................................................... 25, 26
Abbott v. Perez,
138 S. Ct. 2305 (2018) .........................................................................................47
Adams v. Sch. Bd. of St. Johns Cnty.,

No. 18-13592, 2022 WL 18003879 (11th Cir. Dec. 30, 2022) (en banc) ... passim

3 F.4th 1299 (11th Cir. 2021) ..............................................................................17

968 F.3d 1286 (11th Cir. 2020) .................................................................... 17, 46
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,

458 U.S. 592 (1982) ................................................................................ 15, 19, 20
Appalachian Power Co. v. EPA,

208 F.3d 1015 (D.C. Cir. 2000) .................................................................... 28, 36
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

576 U.S. 787 (2015) .............................................................................................21
Arizona v. Biden,
40 F.4th 375 (6th Cir. 2022) ........................................................................ passim
B.P.J. v. W. Va. State Bd. of Educ.,

No. 2:21-cv-00316, 2023 WL 111875 (S.D. W. Va. Jan. 5, 2023) .. 18, 23, 28, 51
Babbitt v. Farm Workers,

442 U.S. 289 (1979) .............................................................................................22
Ballard v. United States,

329 U.S. 187 (1946) .............................................................................................41
iii
Bangura v. Hansen,
434 F.3d 487 (6th Cir. 2006) ...............................................................................30
Bennett v. Spear,
520 U.S. 154 (1997) ...................................................................................... 25, 26
Blankenship v. Blackwell,
429 F.3d 254 (6th Cir. 2005) ...............................................................................53
Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ................................................................................. passim
Bowen v. Massachusetts,
487 U.S. 879 (1988) .............................................................................................30
Califano v. Yamasaki,
442 U.S. 682 (1979) ...................................................................................... 50, 51
Cape v. TSSAA,
563 F.2d 793 (6th Cir. 1977) ...............................................................................17
City of Pontiac Retired Emps. Ass’n v. Schimmel,

751 F.3d 427 (6th Cir. 2014) (en banc) (per curiam) ................................... 14, 15
Colorado v. Toll,
268 U.S. 228 (1925) .............................................................................................19
Ctr. for Auto Safety v. NHTSA,

452 F.3d 798 (D.C. Cir. 2006) .............................................................................29
Czyzewski v. Jevic Holding Corp.,

580 U.S. 451 (2017) .............................................................................................16
Deja Vu of Nashville, Inc. v. Metro. Gov’t,

274 F.3d 377 (6th Cir. 2001) ...............................................................................48
Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) .........................................................................................16
iv
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) .........................................................................................38
Detroit Edison Co. v. EPA,

496 F.2d 244 (6th Cir. 1974) ........................................................................ 28, 36
Dismas Charities, Inc. v. DOJ,

401 F.3d 666 (6th Cir. 2005) ...............................................................................35
Dodds v. U.S. Department of Education,

845 F.3d 217 (6th Cir. 2016) (per curiam) ................................................... 43, 44
Doe v. Univ. of Cincinnati,

872 F.3d 393 (6th Cir. 2017) ...............................................................................48
D.T. v. Sumner Cnty. Schs.,

942 F.3d 324 (6th Cir. 2019) ...............................................................................48
E. Bay Sanctuary Covenant v. Garland,

994 F.3d 962 (9th Cir. 2020) ...............................................................................50
EEOC v. G.R. Harris Funeral Homes, Inc.,

884 F.3d 560 (6th Cir. 2018) ...............................................................................49
Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) .........................................................................................38
FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................................................................39
Feller v. Brock,
802 F.2d 722 (4th Cir. 1986) ...............................................................................52
Florida v. Weinberger,
492 F.2d 488 (5th Cir. 1974) ...............................................................................25
Ford v. Wilder,
469 F.3d 500 (6th Cir. 2006) .......................................................................... 6, 53
v
Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) ...................................................................................... 33, 34
Garcia v. Vilsak,
563 F.3d 519 (D.C. Cir. 2009) .............................................................................31
Gen. Elec. Co. v. EPA,

290 F.3d 377 (D.C. Cir. 2002) .............................................................................37
Golden & Zimmerman, LLC v. Domenech,

599 F.3d 426 (4th Cir. 2010) ...............................................................................27
Grimm v. Gloucester Cnty. Sch. Bd.,

972 F.3d 586 (4th Cir. 2020) ........................................................................ 41, 43
Haines v. Fed. Motor Carrier Safety Admin.,

814 F.3d 417 (6th Cir. 2016) ...............................................................................25
Hoctor v. USDA,
82 F.3d 165 (7th Cir. 1996) .................................................................................38
Jama v. Dep't of Homeland Sec.,

760 F.3d 490 (6th Cir. 2014) ...............................................................................28
Karcher v. May,
484 U.S. 72 (1987) ...............................................................................................54
Kentucky v. Biden,
No. 21-6147, 2023 WL 164614 (6th Cir. Jan. 12, 2023) ........................ 16, 24, 47
Kentucky v. Biden,
23 F.4th 585 (6th Cir. 2022) ................................................................................21
Kentucky v. Yellen,
54 F.4th 325 (6th Cir. 2022) ................................................................................44
Kentucky v. Yellen,
563 F. Supp. 3d 647 (E.D. Ky. 2021) ..................................................................45
vi
King v. Burwell,
576 U.S. 473 (2015) .............................................................................................46
Klein v. U.S. Dep’t of Energy,

753 F.3d 576 (6th Cir. 2014) ...............................................................................21
Long v. Insight Comms. of Cent. Ohio, LLC,

804 F.3d 791 (6th Cir. 2015) ...............................................................................38
Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .............................................................................................21
Lusardi v. McHugh,
2015 WL 1607756 (EEOC Apr. 1, 2015) ............................................................56
Maine v. Taylor,
477 U.S. 131 (1986) .............................................................................................19
Mann Constr., Inc. v. United States,

27 F.4th 1138 (6th Cir. 2022) ....................................................................... 36, 38
Marlow v. U.S. Dep’t of Educ.,

820 F.2d 581 (2d Cir. 1987).................................................................................33
Massachusetts v. EPA,
549 U.S. 497 (2007) ................................................................................ 19, 21, 22
Massachusetts v. Mellon,
262 U.S. 447 (1923) ...................................................................................... 20, 21
Memphis A. Philip Randolph Inst. v. Hargett,

978 F.3d 378 (6th Cir. 2020) ...............................................................................15
Meriwether v. Hartop,
992 F.3d 492 (6th Cir. 2021) ....................................................................... passim
Midwest Media Prop., L.L.C. v. Symmes Twp.,

503 F.3d 456 (6th Cir. 2007) ...............................................................................22
vii
Missouri v. Holland,
252 U.S. 416 (1920) .............................................................................................19
Nat’l Council for Adoption v. Blinken,

4 F.4th 106 (D.C. Cir. 2021) ................................................................................37
Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .............................................................................................45
Nat’l Mining Ass’n v. McCarthy,

758 F.3d 243 (D.C. Cir. 2014) .............................................................................29
Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,

145 F.3d 1399 (D.C. Cir. 1998) ...........................................................................50
Nken v. Holder,
556 U.S. 418 (2009) .............................................................................................14
NLRB v. Wyman-Gordon Co.,

394 U.S. 759 (1969) .............................................................................................35
Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp.,

766 F.2d 228 (6th Cir. 1985) ........................................................................ 15, 19
Ohio Forestry Ass’n v. Sierra Club,

523 U.S. 726 (1998) .............................................................................................25
Online Merchs. Guild v. Cameron,

995 F.3d 540 (6th Cir. 2021) ........................................................................ 22, 23
Parsons v. DOJ,
801 F.3d 701 (6th Cir. 2015) ...............................................................................24
Parsons v. DOJ,
878 F.3d 167 (6th Cir. 2017) ........................................................................ 26, 29
Pelcha v. MW Bancorp, Inc.,

988 F.3d 318 (6th Cir. 2021) .................................................................. 37, 39, 51
viii
Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1 (1981) .................................................................................................44
Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ...............................................................................................29
Pharm. Res. & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs.,
138 F. Supp. 3d 31 (D.D.C. 2015) .......................................................................29
POET Biorefining, LLC v. EPA,

970 F.3d 392 (D.C. Cir. 2020) .............................................................................37
R.K. v. Lee,
53 F.4th 995 (6th Cir. 2022) ................................................................................22
Reiter v. Sonotone Corp.,

442 U.S. 330 (1979) .............................................................................................43
Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) .............................................................................................46
Rogers v. Bennett,
873 F.2d 1387 (11th Cir. 1989) ...........................................................................34
Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) (per curiam) ........................................................................48
Romeo Cmty. Schs. v. U.S. Dep’t of Health, Educ. & Welfare,

438 F. Supp. 1021 (E.D. Mich. 1977)........................................................... 33, 34
Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc.,

547 U.S. 47 (2006) ........................................................................................ 11, 15
Rumsfeld v. Padilla,
542 U.S. 426 (2004) .............................................................................................43
Russman v. Bd. of Educ.,

260 F.3d 114 (2d Cir.2001)..................................................................................53
ix
Sackett v. EPA,
566 U.S. 120 (2012) ...................................................................................... 30, 31
Sch. Dist. of Pontiac v. Sec’y of U.S. Dep’t of Educ.,

584 F.3d 253 (6th Cir. 2009) (en banc) ........................................................ 16, 45
School of the Ozarks v. Biden,

41 F.4th 992 (8th Cir. 2022) ................................................................................37
SEC v. KPMG LLP,

412 F. Supp. 2d 349 (S.D.N.Y. 2006) .................................................................43
Shalala v. Guernsey Mem’l Hosp.,

514 U.S. 87 (1995) .................................................................................. 34, 35, 37
South Dakota v. Dole,

483 U.S. 203 (1987) .............................................................................................45
Steele v. Bulova Watch Co.,

344 U.S. 280 (1952) .............................................................................................52
Sullivan v. Benningfield,
920 F.3d 401 (6th Cir. 2019) ...............................................................................15
Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................................................ 19, 22, 48
Taylor v. Cohen,
405 F.2d 277 (4th Cir. 1968) (en banc) ...............................................................34
Tenn. Hosp. Ass’n v. Azar,

908 F.3d 1029 (6th Cir. 2018) ................................................................ 34, 35, 37
Texas v. EEOC,
933 F.3d 433 (5th Cir. 2019) ........................................................................ 21, 26
Texas v. EEOC,
No. 2:21-CV-194-Z, 2022 WL 4835346 (N.D. Tex. Oct. 1, 2022)............. passim
x
Texas v. EEOC,
No. 2:21-CV-194-Z, (N.D. Tex. May 26, 2022), ECF No. 53 ............................55
Texas v. United States,

201 F. Supp. 3d 810 (N.D. Tex. 2016) ..................................................... 3, 31, 33
Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ................................................................................ 31, 32, 33
Tumblebus, Inc. v. Cranmer,

399 F.3d 754 (6th Cir. 1989) ...............................................................................14
U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016) .................................................................................. 26, 27
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994) ...............................................................................................53
United States v. AMC Ent., Inc.,

549 F.3d 760 (9th Cir. 2008) ...............................................................................52
United States v. Virginia,

518 U.S. 515 (1996) .............................................................................................41
Vitolo v. Guzman,
999 F.3d 353 (6th Cir. 2021) ...............................................................................14
West Virginia v. EPA,

142 S. Ct. 2587 (2022) .........................................................................................46
Whole Women's Health v. Jackson

142 S. Ct. 522 (2021) ...........................................................................................22
Wyoming ex rel. Crank v. United States,

539 F.3d 1236 (10th Cir. 2008) ...........................................................................19
xi
Statutes
5 U.S.C. § 553 ..........................................................................................................34
5 U.S.C. § 704 ..........................................................................................................30
5 U.S.C. § 706 ..........................................................................................................50
20 U.S.C. § 1234g(a) ...............................................................................................32
20 U.S.C. § 1681 ................................................................................... 37, 40, 41, 42
20 U.S.C. § 1682 ......................................................................................... 32, 33, 36
20 U.S.C. § 1683 ............................................................................................... 32, 33
20 U.S.C. § 1686 .............................................................................................. passim
28 U.S.C. § 1292 ........................................................................................................2
28 U.S.C. § 1331 ........................................................................................................2
28 U.S.C. § 1346 ........................................................................................................2
28 U.S.C. § 1361 ........................................................................................................2
42 U.S.C. § 2000e-2(a)(1)................................................................................... 7, 42
Ariz. Rev. Stat. Ann. § 15-120.02............................................................................18
Ga. Code Ann. § 20-2-316 .......................................................................................50
Ind. Code Ann. § 20-33-13-4 ...................................................................................18
Ky. Rev. Stat. Ann. § 164.2813 ...............................................................................18
La. Stat. Ann. § 4:444 ..............................................................................................18
Miss. Code. Ann. § 37-97-1 .....................................................................................18
xii
70 Okla. Stat. § 1-125 ..............................................................................................17
70 Okla. Stat. § 27-106 ............................................................................................18
S.C. Code Ann. § 59-1-500 ......................................................................................18
S.D. Codified Laws § 13-67-1 .................................................................................18
Tenn. Code Ann. § 49-7-180 ...................................................................................18
U.S. Const. amend. X...............................................................................................46
U.S. Const. art. I, § 1................................................................................................46
W. Va. Code Ann. § 18-2-25d .......................................................................... 18, 47
Rules & Regulations
34 C.F.R. §§ 100.7-.8 ...............................................................................................32
34 C.F.R. § 106.33 ................................................................................ 35, 41, 44, 47
34 C.F.R. § 106.37(c).................................................................................. 35, 41, 47
34 C.F.R. § 106.41(b) ........................................................................... 35, 41, 45, 47
118 Cong. Rec. 5,807 (1972) ...................................................................................40
85 Fed. Reg. 30,026 .................................................................................................41
85 Fed. Reg. 30,178 .................................................................................................42
86 Fed. Reg. 7,023 (Jan. 20, 2021) ............................................................................8
86 Fed. Reg. 32,637 (June 22, 2021) ………………………………….. …….passim
Fed. R. App. P. 4(a)(1)(B) .........................................................................................2
xiii
Other Authorities
ACLU of Texas, ACLU of Tex. Civil Rights Compl. on Granbury ISD Book Bans
Leads to Federal Invistigation (Dec. 20, 2022), https://www.aclutx.org/en/press-
releases/aclu-texas-civil-rights-complaint-granbury-isd-book-bans-leads-federal-
investigation .........................................................................................................23
ACLU of Texas, Complaint (July 8, 2022), https://www.aclutx.org/sites/default

/files/aclutx_granbury_isd_title_ix_complaint.pdf ..............................................24
Bryan A. Garner et al., The Law of Judicial Precedent (2016) ..................................... 52
Juno/James Dawson, This Book is Gay (2021 ed.) .......................................................... 24
The American Heritage Dictionary (5th ed. 2011) ................................................................. 41
xiv
STATEMENT REGARDING ORAL ARGUMENT
Plaintiff States1 agree that oral argument will aid this Court’s review. The
district court preliminarily enjoined Defendants from implementing the U.S.
Department of Education (“Department”) Interpretation, Dear Educator Letter, and
Fact Sheet and the U.S. Equal Employment Opportunity Commission (“EEOC”)
Technical Assistance Document against Plaintiffs-Appellees because the federal
agencies likely violated the Administrative Procedure Act (“APA”) in promulgating
the guidance documents. This interlocutory appeal presents important issues of
constitutional law and statutory interpretation and implicates billions of dollars of
federal funding for Plaintiff States.
1
The State of Arizona has elected not to join this brief and is not represented by
counsel for the remaining 19 Plaintiff States. Nothing in this brief purports to
represent the current views of the State of Arizona.
1
STATEMENT OF JURISDICTION
The district court had subject-matter jurisdiction under 28 U.S.C. §§ 1331,
1346, 1361. Complaint, R. 1, PageID#6-7. The district court issued its order
granting Plaintiff States’ Motion for Preliminary Injunction on July 15, 2022. PI
Order, R. 86, PageID#1987. The district court found that Plaintiffs satisfied Article
III’s standing requirement. Id. at PageID#1958. Defendants timely appealed on
September 13, 2022. Notice of Appeal, R. 100, PageID#2407-08. This Court has
statutory jurisdiction over the appeal under 28 U.S.C. § 1292(a)(1).
After Defendants appealed, the U.S. District Court for the Northern District
of Texas declared unlawful, vacated, and set aside the same EEOC Technical
Assistance Document challenged in this case. Texas v. EEOC, No. 2:21-CV-194-Z,
2022 WL 4835346, at *17 (N.D. Tex. Oct. 1, 2022). EEOC voluntarily chose not to
appeal that decision to the U.S. Court of Appeals for the Fifth Circuit by November
30, 2022, so the judgment in Texas became final. Fed. R. App. P. 4(a)(1)(B).
EEOC’s decision not to appeal in Texas means there is “no longer a live controversy
regarding whether this document is valid.” Defendants’ Brief at 8 n.2. Because
Defendants’ appeal of the preliminary injunction against implementation of the
Technical Assistance Document is now moot, this Court lacks jurisdiction to review
that portion of the preliminary injunction order.
2
STATEMENT OF THE ISSUES
I. Whether Plaintiff States have Article III standing to challenge the
Department’s Interpretation, Dear Educator Letter, and Fact Sheet.
II. Whether the district court abused its discretion by preliminarily
enjoining Defendants from implementing against Plaintiff States the Interpretation,
Dear Educator Letter, and Fact Sheet, which rewrote Title IX to prohibit
discrimination based on sexual orientation and gender identity.
III. Whether this Court should dismiss Defendants’ appeal of the
preliminary injunction of the EEOC Technical Assistance Document because this
appeal became moot when EEOC chose not to appeal the vacatur of that document.
INTRODUCTION
For the second time in less than a decade, the Department of Education has
attempted to effect radical change in our nation’s schools by purporting to “interpret”
Title IX to prohibit sexual orientation and gender identity discrimination. As in
2016, when its unlawful actions were enjoined, Texas v. United States, 201 F. Supp.
3d 810 (N.D. Tex. 2016), the Department has once again ordered States and other
regulated parties to ignore the biological reality of sex when it comes to athletics,
locker rooms, pronouns, and who knows what else, or face enforcement actions.
The district court in this case rightly granted Plaintiff States’ Motion for
Preliminary Injunction to protect them from Defendants’ unlawful commands. PI
3
Order, R. 86, PageID#1987. Without using the notice-and-comment process, the
Department began by “interpret[ing] Title IX’s prohibition on discrimination ‘on the
basis of sex’ to encompass discrimination on the basis of sexual orientation and
gender identity.” Enforcement of Title IX of the Education Amendments of 1972
With Respect to Discrimination Based on Sexual Orientation and Gender Identity in
Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021), Compl.
Ex. A, R. 1-2, PageID#42-45 (“Interpretation”). Defendants then circulated a “Dear
Educator Letter” and a “Fact Sheet” on “Confronting Anti-LGBTQI+ Harassment
in Schools.” Department, Letter to Educators on Title IX’s 49th Anniversary (June
23, 2021), Compl. Ex. C, R. 1-4, PageID#70-72; U.S. Dep’t of Justice (“DOJ”) &
Department, Confronting Anti-LGBTQI+ Harassment in Schools (June 23, 2021),
Compl. Ex. C, R. 1-4, PageID#73-74 (collectively, “Fact Sheet”).
Defendants are of two minds about the effect of these documents. When their
audience is the regulated community, Defendants pull no punches. Linking to the
Fact Sheet, they take the position that conduct that violates the guidance—such as
preventing a transgender student “from playing on a sports field [or] accessing the
bathroom” consistent with the student’s gender identity—is “against the law” and
that they are “ready to act to defend” the rights of transgender students. DOJ et al.,
Back-to-School Address for Transgender Students at 1:07-1:27, 4:36-40 (Aug. 17,
2021), https://bit.ly/3B8NvZn. That aggressive tack adheres to the Department’s
4
threat to “fully enforce” its rewriting of Title IX, such as when a high school does
not allow “a transgender high school girl” (i.e., a biological boy) to use the girls’
restroom or stops that student from trying out for the girls’ cheerleading team. Fact
Sheet, R. 1-4, PageID#72-73.
Forced to defend their edicts in this litigation, Defendants take a softer tack.
They profess that “the documents do not purport to prejudge any particular case” or
“indicate that sex-separated bathrooms, dress codes, or sports teams are per se
unlawful,” Defendants’ Brief at 26, and assert that “[a]ny theory of pre-enforcement
injury is” merely “speculative,” Defendants’ Brief at 33.
Defendants cannot have it both ways. Because Defendants’ message to
regulated parties has been clear—comply with the Interpretation and Fact Sheet or
else face enforcement—the States have standing to bring this pre-enforcement
challenge to prevent irreparable harm to their sovereign interests.
Plaintiffs are likely to succeed on the merits of their claims because, labels
notwithstanding, the challenged documents constitute final agency actions that are
legislative rules. These rules violated the APA at every turn and are substantively
unlawful because they conflict with Title IX and violate the Constitution. The
district court did not abuse its discretion in issuing a preliminary injunction
protecting Plaintiff States from the Interpretation and Fact Sheet.
5
Nor did the district court abuse its discretion in preliminarily enjoining
Defendants from implementing the Technical Assistance Document—unilaterally
issued by the EEOC Chair—against Plaintiff States. See EEOC, Protections Against
Employment Discrimination Based on Sexual Orientation or Gender Identity (June
15, 2021), Compl. Ex. D, R. 1-5, PageID#76-86 (“Technical Assistance
Document”). Oddly, Defendants gloss over the fact that, while this appeal was
pending, EEOC allowed a judgment declaring unlawful, vacating, and setting aside
the Technical Assistance Document nationwide to become final by choosing not to
appeal that decision. Texas v. EEOC, 2022 WL 4835346, at *17. In a single
footnote, Defendants acknowledge that “there is no longer a live controversy
regarding whether this document is valid.” Defendants’ Brief at 8 n.2.
This Court, therefore, should dismiss Defendants’ appeal of the preliminary
injunction of the Technical Assistance Document as moot without vacating that
portion of the decision below “because the defendants were responsible for the
mooting of” their own appeal. Ford v. Wilder, 469 F.3d 500, 506 (6th Cir. 2006).
Even if this Court were to unnecessarily address Plaintiffs’ standing at the district
court to challenge the now-vacated document, both this district court and the Texas
court correctly ruled that the States established standing.
6
STATEMENT OF THE CASE
A. Bostock’s Narrow Title VII Decision and Initial Response
In Bostock v. Clayton County, the U.S. Supreme Court held that Title VII’s
prohibition on employment discrimination “because of [an] individual’s . . . sex,” 42
U.S.C. § 2000e-2(a)(1), prohibits an employer from “fir[ing] someone simply for
being homosexual or transgender,” 140 S. Ct. 1731, 1737 (2020).
The Supreme Court carefully limited its opinion and unequivocally did “not
purport to address bathrooms, locker rooms, or anything else of the kind” under Title
VII. Id. at 1753. In response to worries that Bostock would “sweep beyond Title
VII to other federal . . . laws that prohibit sex discrimination,” such as Title IX, the
Supreme Court expressly declined to “prejudge” all other laws. Id. Constitutional
concerns were “questions for future cases too.” Id. at 1754.
In early 2021, the Department issued a Memorandum acknowledging its
“longstanding construction of the term ‘sex’ in Title IX to mean biological sex, male
or female,” and explaining its “position that,” even after Bostock, “Title IX’s
statutory and regulatory provisions permit, and in some cases require, biological sex,
male or female, to be taken into account in an education program or activity.”
Department, Memorandum for Kimberly M. Richey Re: Bostock v. Clayton County
at 1, 6 (Jan. 8, 2021), https://bit.ly/3mwKI7H. Athletics and living facilities could
continue to separate the two sexes under Title IX. Id. at 7-13. DOJ reached similar
7
conclusions. DOJ, Memorandum for the Civil Rights Division Regarding
Application of Bostock v. Clayton County at 17 (Jan. 17, 2022), Compl. Ex. B, R.
1-3, PageID#63.
B. President Biden’s Executive Order and Challenged Documents
As one of his first official acts, President Biden declared that Bostock’s
analysis changed the meaning of all federal sex discrimination laws: “[L]aws that
prohibit sex discrimination—including Title IX . . . along with [its] respective
implementing regulations—prohibit discrimination on the basis of gender identity
or sexual orientation, so long as the laws do not contain sufficient indications to the
contrary.” Exec. Order No. 13,988, 86 Fed. Reg. 7,023, 7,023 (Jan. 20, 2021).
President Biden ordered the head of each agency to “fully implement the policy” set
forth in the Executive Order. Id. at 7,024.
1. Department of Education Interpretation and Fact Sheet
On June 22, 2021, the Department published its new Interpretation of Title
IX. The Department concluded that Title IX’s unique statutory requirements are no
different from Title VII’s and interpreted “Title IX’s prohibition on discrimination
‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation
and gender identity.” Interpretation, 86 Fed. Reg. 32,637, 32,637, Compl. Ex. A, R.
1-2, PageID#42. The Department declared that it “will fully enforce Title IX to
prohibit discrimination based on sexual orientation and gender identity” and that the
8
Interpretation will “guide the Department in processing complaints and conducting
investigations.” 86 Fed. Reg. at 32,639.
The following day, the Department issued the Dear Educator Letter, and the
Department and DOJ jointly issued the Fact Sheet. Fact Sheet, Compl. Ex. C, R. 1-
4, PageID#70-74. The Fact Sheet identifies discrete examples of purportedly
discriminatory conduct that the Department and DOJ “can investigate.” Id. at
PageID#73. That conduct includes preventing “a transgender high school girl,” who
is biologically a boy, from using the girls’ restroom and “try[ing] out for the girls’
cheerleading team.” Id. The Fact Sheet also asserts that Defendants can investigate
when a teacher instructs elementary school students that “there are only boys and
girls” or refuses to use preferred “they/them pronouns.” Id. The Fact Sheet
encourages students who “have been treated unfairly . . . because of sexual
orientation or gender identity” to “[w]rite down the details” and “[c]onsider filing a
complaint” with the agencies. Id. at PageID#74.
2. EEOC Technical Assistance Document
On June 15, 2021, EEOC Chair Charlotte Burrows published a “technical
assistance document” on the EEOC website that purports to “explain[] what the
Bostock decision means for LGBTQ+ workers (and for all covered workers) and for
employers across the country.” Technical Assistance Document, Complaint Ex. D,
R. 1-5, PageID#77. The Chairman issued the document without the approval of
9
other EEOC Commissioners. Answer ¶¶ 88-91, R. 93, PageID#2034-35.
The Technical Assistance Document provided examples of employer actions
that would constitute sex discrimination. Those examples include “[p]rohibiting a
transgender person from dressing or presenting consistent with that person’s gender
identity”; prohibiting a transgender person from using the “bathrooms, locker rooms,
or showers” that correspond to the person’s gender identity; and using “pronouns or
names that are inconsistent with an individual’s gender identity.” Technical
Assistance Document, R. 1-5, PageID#81-82. Though the document disclaimed
binding legal effect, it directed people to contact EEOC with any reports of
discrimination, including by filing a formal charge. Id. at PageID#82-83.
C. District Court Decision
A group of state Attorneys General led by Tennessee—and including all
Plaintiff States—sent a letter to President Biden detailing the procedural and
substantive shortcomings in these agency actions. Letter from Herbert H. Slatery III
et al. to President Biden (July 7, 2021), https://bit.ly/3sNdNNn. When Defendants
declined to reconsider, the twenty Plaintiff States sued. Compl., R. 1, PageID#1.
The States sought declaratory and injunctive relief and the setting aside of the
challenged documents. Id. at PageID#33-35.
Plaintiffs moved for a preliminary injunction, which the district court granted.
PI Mot., R. 10, PageID#120; PI Order, R. 86, PageID#1987.
10
To start, the district court ruled that “Plaintiffs have satisfied Article III’s
standing requirement.” PI Order, R. 86, PageID#1958. Many Plaintiff States had
already “enacted, and [were] currently enforcing, statutes that arguably conflict with
Defendants’ guidance as to the legality of certain conduct related to sexual
orientation and gender identity.” Id. at PageID#1953. Because the “presence of one
party with standing is sufficient to satisfy Article III’s case or controversy
requirement,” the district court did not address any other source of standing for the
States. Id. at PageID#1950 (quoting Rumsfeld v. Forum for Acad. & Inst’l Rights,
Inc., 547 U.S. 47, 52 n.2 (2006)); see also id. at n.11 PageID#1957.
Next, the district court rejected Defendants’ ripeness argument, which they
have now abandoned. Id. at PageID#1959.
The district court also rejected Defendants’ reviewability arguments. The
challenged documents are final agency actions. PI Order, R. 86, PageID#1972-73.
Defendants did not contest that the documents mark the consummation of the
agencies’ decision-making process. Id. at PageID#1966. And the challenged
documents determined the rights and obligations “of those subject to Title VII and
IX, including Plaintiffs.” Id. Further, the district court ruled that “Plaintiffs do not
have an adequate alternative remedy within the meaning of the APA” because
“helplessly awaiting the initiation of enforcement proceedings and risking potential
liability in the interim is not an adequate remedy under the APA.” Id. at
11
PageID#1975. And “the express language of Title IX does not foreclose all judicial
review.” Id. at PageID#1977.
Turning to the preliminary injunction factors, the district court held that
“Plaintiffs have demonstrated a likelihood of success on the merits of their notice
and comment claim.” Id. at PageID#1981. The challenged documents act as
legislative rules. The Department’s Interpretation and Fact Sheet, for instance,
“create[] 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.” Id. at PageID#1982. The States suffer “an
immediate injury to their sovereign interests” without an injunction, while
Defendants have no “legitimate interest in enforcing the guidance documents that
Plaintiffs have shown are likely to be procedurally invalid.” Id. at PageID#1985-86.
The district court limited the preliminary injunction to the Plaintiff States. Id.
at PageID#1987.
Defendants timely appealed. Notice of Appeal, R. 100, PageID#2407. The
district court, with the parties’ agreement, stayed proceedings pending appeal.
Order, R. 111, PageID#2546. While Defendants’ appeal was pending, another
federal district court declared unlawful, vacated, and set aside the Technical
Assistance Document. Texas v. EEOC, 2022 WL 4835346, at *17. EEOC
voluntarily chose not to appeal that decision, so it became final.
12
SUMMARY OF ARGUMENT
This Court should (1) affirm the district court’s preliminary injunction
prohibiting Defendants from implementing the Interpretation and Fact Sheet against
Plaintiff States; and (2) dismiss as moot Defendants’ appeal of the preliminary
injunction prohibiting Defendants from implementing the now-vacated Technical
Assistance Document.
The district court correctly ruled that Plaintiffs have standing to challenge the
Department’s Interpretation and Fact Sheet. The existence of a single Plaintiff with
standing suffices for Article III, but all States have standing to challenge the
attempted expansion of Title IX. The Department’s threatened enforcement puts
billions of dollars in federal funding at risk.
The district court did not abuse its discretion in granting preliminary relief.
Plaintiffs’ claims are reviewable because the challenged Department documents are
final agency action, and there is no adequate or exclusive remedy that would
preclude this pre-enforcement challenge. Plaintiffs are likely to prevail on both their
procedural and substantive APA arguments. Defendants failed to issue these
legislative rules with the requisite notice and comment, and the Interpretation and
Fact Sheet are arbitrary and capricious. The documents fly in the face of Title IX
and its implementing regulations by attempting to end ubiquitous and common-sense
practices such as sex-separated bathrooms and athletic teams. That administrative
13
assertion of authority violates the Spending Clause, compels States to violate First
Amendment rights, and undermines the Constitution’s structure.
Finally, Defendants voluntarily mooted their appeal of the Technical
Assistance Document injunction because they chose to relinquish the right to appeal
another district court’s vacatur of that document. Plaintiffs had standing to challenge
the document, and this Court should allow the district court to address any remaining
claims against EEOC or about Title VII in the first instance.
STANDARD OF REVIEW
This Court reviews for abuse of discretion the district court’s “determination
as to whether the four preliminary injunction factors weigh in favor of granting or
denying preliminary injunctive relief.” City of Pontiac Retired Emps. Ass’n v.
Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam) (quoting
Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 1989)). Those four factors
are: “(1) whether the moving party 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)). This Court’s
standard of review “is deferential, but the court may reverse the district court if it
improperly applied the governing law, used an erroneous legal standard, or relied
14
upon clearly erroneous findings of fact.” Schimmel, 751 F.3d at 430.
This Court reviews questions of standing and mootness de novo. Sullivan v.
Benningfield, 920 F.3d 401, 407 (6th Cir. 2019).
ARGUMENT
I. The District Court Correctly Ruled That Plaintiff States Have Standing
to Challenge the Department’s Interpretation and Fact Sheet.
All Plaintiff States have standing to challenge the Department’s expansion of
Title IX. But even if only one State has standing, that “is sufficient to satisfy Article
III’s case or controversy requirement.” Rumsfeld, 547 U.S. at 52 n.2.
A. The Interpretation and Fact Sheet injure Plaintiff States.
This case easily satisfies Article III’s case-or-controversy requirement. See
Memphis A. Philip Randolph Inst. v. Hargett, 978 F.3d 378, 386 (6th Cir. 2020)
(requiring only “a ‘substantial likelihood’ of standing” at the preliminary-injunction
stage). The Department’s Interpretation and Fact Sheet injure Plaintiffs by
interfering with their sovereign authority to make and enforce laws; threatening the
loss of billions of dollars in federal funding; and imposing administrative costs and
burdens by forcing them to evaluate compliance with the agencies’ new
interpretations. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592, 601 (1982) (interference with a State’s sovereign “power to create and
enforce a legal code” is sufficient to establish standing); Ohio ex rel. Celebrezze v.
U.S. Dep’t of Transp., 766 F.2d 228, 232-33 (6th Cir. 1985) (potential preemption
15
of state laws sufficient to establish standing); Dep’t of Com. v. New York, 139 S. Ct.
2551, 2565 (2019) (future loss of federal funds sufficient to establish standing);
Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464 (2017) (“For standing
purposes, a loss of even a small amount of money is ordinarily an ‘injury.’”);
Kentucky v. Biden, No. 21-6147, 2023 WL 164614, at *8 (6th Cir. Jan. 12, 2023)
(“each plaintiff currently receives funding” from the federal government so each
plaintiff had standing); Sch. Dist. of Pontiac v. Sec’y of U.S. Dep’t of Educ., 584
F.3d 253, 261-62 (6th Cir. 2009) (en banc) (plurality opinion) (compliance costs
sufficient to establish standing).2 Those injuries are directly traceable to the
challenged guidance and are redressable by the relief sought in this case.
1. At least 16 States’ laws arguably conflict with the guidance.
There is an arguable conflict between the States’ laws and practices and the
challenged guidance with respect to the “nearly universal” “practice of separating
school bathrooms based on biological sex,” which is proscribed by the Interpretation
and Fact Sheet. Adams v. Sch. Bd. of St. Johns Cnty., No. 18-13592, 2022 WL
18003879, at *1 (11th Cir. Dec. 30, 2022) (en banc) (rejecting Title IX challenge);
see, e.g., PI Ex. D ¶ 4, R. 11-4, PageID#175 (“Tennessee’s state special schools
maintain sex-separated bathroom and locker facilities.”). Plaintiffs Tennessee,
2
“Plaintiffs represented” below “that the alleged injury to their sovereign interests
is the most direct injury that confers standing.” PI Order, R. 86, PageID#1952. That
does not mean other injuries are insufficient. See Defendants’ Brief at 31 n.5.
16
Alaska, Nebraska, Oklahoma, and West Virginia have even passed laws protecting
the privacy of both sexes while using the bathroom. See PI Order, R. 86,
PageID#1953; Compl. ¶¶ 98-99, R. 1, PageID#18-20 (copies in Addendum); see
also 70 Okla. Stat. § 1-125.
But the Interpretation relies on the long-ago vacated panel opinion in Adams
which ruled that sex-separated bathrooms violate Title IX. 86 Fed. Reg. 32,639
(citing Adams, 968 F.3d 1286, 1305 (11th Cir. 2020), Title IX ruling vacated, 3 F.4th
1299 (2021), ruling no Title IX violation, 2022 WL 18003879 (2022) (en banc)).
And the Fact Sheet pronounced that a school cannot stop high school boys who
identify as girls from using the girls’ bathroom. Fact Sheet, R. 1-4, PageID#73.
The same conflict exists in the context of athletics. Many interscholastic
sports have separate teams for boys and girls, with particular focus on protecting
athletic opportunities for girls due to “distinct differences in physical characteristics
and capabilities between the sexes.” Cape v. TSSAA, 563 F.2d 793, 795 (6th Cir.
1977); see, e.g., PI Ex. D ¶ 4, R. 11-4, PageID#176 (describing sex-separated
basketball teams at a Tennessee-run school); cf. Adams, 2022 WL 18003879, at *19-
22 (Lagoa, J., specially concurring).
Accordingly, Plaintiffs Tennessee, Alabama, Alaska, Arizona, Arkansas,
Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Oklahoma, South
Carolina, South Dakota, and West Virginia have all enacted laws protecting sex-
17
separation in athletics. PI Order, R. 86, PageID#1953; Compl. ¶¶ 98-99, R. 1,
PageID#18-20 (copies in Addendum); see also Tenn. Code Ann. § 49-7-180; Ariz.
Rev. Stat. Ann. § 15-120.02; Ind. Code Ann. § 20-33-13-4; Ky. Rev. Stat. Ann.
§ 164.2813; La. Stat. Ann. § 4:444; Miss. Code. Ann. § 37-97-1; 70 Okla. Stat. § 27-
106; S.C. Code Ann. § 59-1-500; S.D. Codified Laws § 13-67-1; W. Va. Code Ann.
§ 18-2-25d. Yet the Fact Sheet asserts that the newfound prohibition of
discrimination on the basis of gender identity allows the Department to take action
against a school that only allows (biological) girls to try out for girls’ teams. Fact
Sheet, R. 1-4, PageID#73. That is an arguable conflict. Defendants themselves
argue that following West Virginia’s athletics law equates to “discriminatory
treatment of transgender students,” Defendants’ Brief at 39, even though a district
court upheld the law under Title IX, B.P.J. v. W. Va. State Bd. of Educ., No. 2:21-
cv-00316, 2023 WL 111875, at *9 (S.D. W. Va. Jan. 5, 2023).
And the Interpretation and Fact Sheet’s prohibition of discrimination on the
basis of sexual orientation and gender identity stretches beyond bathrooms and
sports fields. The Fact Sheet, for example, defines such discrimination to include a
teacher telling elementary school students that “there are only boys and girls” and
refusing to use “they/them pronouns” for a singular student. Id. at PageID#73.
Those mandates threaten to violate some teachers’ religious beliefs and free speech
rights, despite state laws and constitutional provisions arguably to the contrary.
18
Compl. ¶¶ 98-99, R. 1, PageID#18-20 (identifying Oklahoma and West Virginia
provisions and a law regulating Tennessee universities that arguably conflict).
Defendants claim that this “‘arguable conflict’ with scattered state laws
provides no basis for a pre-enforcement challenge.” Defendants’ Brief at 28. But
“[n]othing in the [Supreme] Court’s decisions requires a plaintiff who wishes to
challenge the constitutionality of a law to confess that he will in fact violate th[e]
law.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 163 (2014). An “arguable”
conflict suffices.
2. The injuries to the States are real, not abstract.
Nor are Plaintiffs’ sovereignty interests too “abstract” to satisfy Article III’s
injury-in-fact requirement. Defendants’ Brief at 23. “[A] State clearly has a
legitimate interest in the continued enforceability of its own statutes.” Maine v.
Taylor, 477 U.S. 131, 137 (1986); see also Alfred L. Snapp & Son, 458 U.S. at 601
(recognizing a State’s “sovereign interest[]” in “creat[ing] and enforc[ing] a legal
code”). And a long line of precedent confirms that States may seek injunctive relief
in federal court to protect that interest. See, e.g., Massachusetts v. EPA, 549 U.S.
497, 520 (2007); Colorado v. Toll, 268 U.S. 228, 229-30 (1925); Missouri v.
Holland, 252 U.S. 416, 431 (1920); Ohio ex rel. Celebrezze, 766 F.2d at 233;
Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008).
Besides the States’ laws already on the books, the challenged documents also
19
seek to interfere with the States’ power to create a legal code responsive to problems
in their public schools. Cf. Alfred L. Snapp & Son, 458 U.S. at 592. For example,
Tennessee teachers have expressed concern about being required to use biologically
inaccurate pronouns to refer to students. See Not. of Supplemental Auth., R. 83,
PageID#1229. But the General Assembly’s Fiscal Review Committee, quoting
extensively from the Department’s guidance, concluded before the preliminary
injunction that Title IX now prohibits discriminating based on sexual orientation and
gender identity and thus placed a $5,385,248,493 fiscal note on a bill to protect
teachers. Resp. to Not. of Supplemental Auth., R. 79, PageID#1163-64. A
representative of the ACLU of Tennessee also cited the challenged guidance to
advocate against the bill. Not. of Supplemental Auth., R. 83, PageID#1229.
The contrast between this case and Arizona v. Biden, 40 F.4th 375 (6th Cir.
2022), only serves to confirm that Plaintiff States have standing. In Arizona, this
Court reversed a nationwide preliminary injunction of a memorandum that the
Secretary of Homeland Security issued “to his deputies outlining th[at] Department’s
immigration enforcement priorities and policies.” Id. at 379-80. In contrast, the
Department issued the Interpretation and Fact Sheet to the Title IX-regulated public,
including Plaintiffs. While the States in Arizona did “not protest regulation of them
as States or preemption of local lawmaking authority,” id. at 386, that is a central
aspect of the harm here.
20
Defendants’ reliance on Massachusetts v. Mellon, 262 U.S. 447 (1923),
Defendants’ Brief at 27, is misplaced. The law challenged in Mellon merely required
Massachusetts to “share . . . the field of state power” with Congress by helping
implement a federal program. 262 U.S. at 485. It did not interfere with the State’s
authority to enact and enforce its own laws. The Supreme Court has limited Mellon
to its facts. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S.
787, 802 n.10 (2015) (collecting decisions). “There is thus no Mellon bar against
the plaintiff states’ suit in their sovereign and quasi-sovereign capacities.” Kentucky
v. Biden, 23 F.4th 585, 598 (6th Cir. 2022).
B. Plaintiffs’ injuries are traceable to the Interpretation and Fact

Sheet and redressable by the relief sought in this case.
Plaintiffs’ injuries are directly traceable to the challenged guidance and would
be redressed by the declaratory and injunctive relief sought in the Complaint, which
includes prohibiting Defendants from enforcing their unlawful guidance. See Texas
v. EEOC, 933 F.3d 433, 449 (5th Cir. 2019). Plaintiffs’ procedural claims also
satisfy the more “relaxed” redressability standard that applies to those claims. Klein
v. U.S. Dep’t of Energy, 753 F.3d 576, 579 (6th Cir. 2014) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 572 n.7 (1992)). That standard requires merely that Plaintiffs
show “some possibility that the requested relief will prompt” the agency to
“reconsider” its decision. Massachusetts, 549 U.S. at 518.
Plaintiffs do not need to wait until there is a pending enforcement action

21
against them. The Supreme Court has made clear that “[w]hen an individual is
subject to” the threatened enforcement of a law, “an actual . . . enforcement action
is not a prerequisite to challenging the law.” Susan B. Anthony List, 573 U.S. at 158
(emphasis added). A plaintiff “satisfies the injury-in-fact requirement where he
alleges ‘an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat
of prosecution.’” Id. at 159 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979)). Plaintiffs easily satisfy those requirements, especially since “sovereign
State[s]” are “entitled to special solicitude in [the Court’s] standing analysis.”
Massachusetts, 549 U.S. at 518-20.
Whole Women’s Health v. Jackson still allows pre-enforcement suits by
entities against officials who can enforce a law against them. 142 S. Ct. 522, 535-36
(2021). Plaintiffs are not unregulated entities, see R.K. v. Lee, 53 F.4th 995, 1000
(6th Cir. 2022), and the newly prohibited conduct does not clearly violate “other
regulations,” Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456, 461 (6th
Cir. 2007).3
A “credible threat” exists that the challenged guidance will be enforced.
Susan B. Anthony List, 573 U.S. at 159. Defendants “ha[ve] not disavowed
3
Contrary to Defendants’ assertion, Defendants’ Brief at 29, Plaintiffs continue to
question the constitutionality of Title IX if it really contains the prohibitions that the
Department announced. See PI Reply, R. 57, PageID#593.
22
enforcement.” Online Merchs. Guild v. Cameron, 995 F.3d 540, 551 (6th Cir. 2021).
The Department instead vowed to “fully enforce” its guidance and rely on it “in
processing complaints and conducting investigations.” Interpretation, 86 Fed. Reg.
at 32,639. Defendants’ “history of past enforcement” lends their threats additional
credibility. Online Merchs. Guild, 995 F.3d at 550 (quotation marks omitted). The
DOJ filed a statement of interest opposing a West Virginia law that “exclud[es]
transgender girls from participating in single-sex sports restricted to girls.”
Statement of Interest of the United States at 1, B.P.J. v. W.V. State Bd. of Educ., No.
2:21-cv-00316 (S.D. W. Va. June 17, 2021), ECF No. 42, available at
https://www.justice.gov/crt/case-document/file/1405541/download. The district
court in B.P.J. nevertheless upheld the law because “Title IX authorizes sex separate
sports in the same manner as” the state statute. B.P.J., 2023 WL 111875, at *9.
And the Department recently opened an investigation of the Granbury
Independent School District in Texas after the ACLU of Texas filed a complaint
relying on the Interpretation and Fact Sheet. ACLU of Texas, ACLU of Tex. Civil
Rights Compl. on Granbury ISD Book Bans Leads To Federal Investigation (Dec.
20, 2022), https://www.aclutx.org/en/press-releases/aclu-texas-civil-rights-
complaint-granbury-isd-book-bans-leads-federal-investigation. The complaint
alleges: (1) that the district superintendent said “There are two genders. There’s
male and there’s female”; and (2) that he “explicitly directed district librarians to
23
pull books” regarding transgender and LGBTQ issues from library shelves. ACLU
of Texas, Compl. 1 (July 8, 2022), https://www.aclutx.org/sites/default/files
/aclutx_granbury_isd_title_ix_complaint.pdf.4 The ACLU cited both the
Interpretation and Fact Sheet for the principle that “[f]ederal law bars discrimination
on the basis of sexual orientation or gender identity, as Department of Education
guidance recognizes.” Id. at 5-6 & nn.13, 15.
Defendants’ Interpretation and Fact Sheet thus put Plaintiffs “to a ‘Catch-22,’
stuck between heavy compliance costs or feared” loss of billions of dollars in federal
funds. Arizona, 40 F.4th at 387. Every Plaintiff oversees and operates educational
institutions, programs, and activities that receive substantial federal funding. Compl.
¶¶ 12-16, R. 1, PageID#4-5; PI Ex. A ¶¶ 3-4, R. 11-1, PageID#166-67; PI Ex. B
¶¶ 6-8, R. 11-2, PageID#170; PI Ex. C ¶¶ 6-7, PageID#173. By modifying Title IX
to prohibit discrimination based on sexual orientation and gender identity,
Defendants force Plaintiffs either to accede to the abridgment of their sovereignty
and the imposition of irreparable compliance costs or to risk the loss of billions of
dollars in federal education funding. See Kentucky, 2023 WL 164614, at *8-9. True,
private litigants can also sue Plaintiffs. But Plaintiffs “need not show that a favorable
4
Most prominently, the ACLU faulted the removal of This Book Is Gay even though
the book encourages minors to use sex apps, glorifies sixteen-year-olds having
sexual relations with married adults, and contains other lewd material. ACLU of
Tex., Compl. at 2 n.1, 3, 5; see Juno/James Dawson, This Book is Gay 182-83,
187-88, 199-200, 208 (2021).
24
decision will relieve [their] every injury.” Parsons v. DOJ, 801 F.3d 701, 716 (6th
Cir. 2015).
The district court correctly stopped Defendants from using the “fear of future
sanctions” to force compliance with their unlawful dictates. Ohio Forestry Ass’n v.
Sierra Club, 523 U.S. 726, 734 (1998); see Abbott Labs. v. Gardner, 387 U.S. 136,
153 (1967). There is no reason to place “sovereign [States] at such risk when so
little would be gained by doing so and so much might be lost.” Florida v.
Weinberger, 492 F.2d 488, 493 (5th Cir. 1974).
II. The District Court Did Not Abuse Its Discretion by Enjoining Defendants
from Implementing the Interpretation and Fact Sheet Against Plaintiffs.
A. Plaintiff States’ claims are reviewable.
Plaintiffs are likely to prevail in establishing the reviewability of their claims
against Defendants’ implementation of the Interpretation and Fact Sheet.5
1. The Interpretation and Fact Sheet are final agency

actions.
The Department’s Interpretation and Fact Sheet are final agency actions
subject to judicial review under the APA. To constitute a final agency action, “the
action must mark the ‘consummation’ of the agency’s decisionmaking process—it
must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520
5
Defendants treat the reviewability elements as jurisdictional, but they are not. See
PI Order, R. 86, n.6 PageID#1950; Haines v. Fed. Motor Carrier Safety Admin., 814
F.3d 417, 424 (6th Cir. 2016).
25
U.S. 154, 177-78 (1997) (cleaned up). And the action must be one by which “rights
or obligations have been determined, or from which legal consequences will flow.”
Id. (emphases added; cleaned up). Courts must take a “pragmatic” approach to
finality. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016)
(quoting Abbott Labs., 387 U.S. at 149).
Defendants do not dispute that the challenged documents satisfy the first
requirement for final agency action as the consummation of the decision-making
process. Bennett, 520 U.S. 154, 178 (1997); see Defendants’ Brief at 36; PI Opp.
23, R. 48, PageID#321. The parties’ disagreement, therefore, centers on the second
requirement: whether the actions are ones by which “‘rights or obligations have
been determined,’ or from which ‘legal consequences will flow.’” Bennett, 520 U.S.
at 178 (quotation omitted). Under the “‘pragmatic’ approach” to finality the
Supreme Court has “long taken,” Hawkes, 136 S. Ct. at 1815 (quoting Abbott Labs.,
387 U.S. at 149), the challenged documents satisfy that requirement because they
“have the effect of committing the agencies . . . to a view of the law that, in turn,
forces the plaintiffs either to alter their conduct, or expose themselves to potential
liability,” Texas, 933 F.3d at 446 (5th Cir. 2019) (cleaned up); see Parsons, 878 F.3d
162, 167 (6th Cir. 2017) (“[A]gency actions that definitively determine legal rights
or obligations result in legal consequences.”).
26
The Interpretation and Fact Sheet are final agency action because they purport
to represent the Department’s definitive interpretation of Title IX—an interpretation
that will guide the agency’s enforcement of the law and thus impose obligations on
regulated parties. See Interpretation, 86 Fed. Reg. at 32,639. Moreover, legal
consequences flow from the Interpretation and Fact Sheet because Title IX recipients
that do not comply with the guidance will risk the loss of substantial federal funds.
See Hawkes, 136 S. Ct. at 1815 (agency action was final where it warned regulated
parties that, if they engage in certain conduct, “they do so at the risk of significant
criminal and civil penalties”).
Defendants argue that these documents “do not have any independent legal
effect” because consequences really come from violating Title IX or its
implementing regulations. Defendants’ Brief at 37 (emphasis added). That
argument is a non-starter; the Department did not simply “restate or report what
already exists in the relevant body of statutes, regulations and rulings.” Golden &
Zimmerman, LLC v. Domenech 599 F.3d 426, 432 (4th Cir. 2010). Rather, the
Interpretation and Fact Sheet “read ‘gender identity’” and sexual orientation “into
the definition of ‘sex’” and thus attempt to expand Title IX beyond what its text
allows. Adams, 2022 WL 18003879, at *15.
Although Defendants may have strategically stayed their hand while the
preliminary injunction was pending, the passage of time has confirmed that the
27
documents extend far beyond what Title IX requires. The en banc Eleventh Circuit
has now held that “separating school bathrooms based on biological sex passes
constitutional muster and comports with Title IX.” Adams, 2022 WL 18003879, at
*1. Contra Interpretation, 86 Fed. Reg. at 32,639 (relying on now-vacated panel
opinion); Fact Sheet, R. 1-4, PageID#73 (declaring that the Department and DOJ
can investigate sex-segregated bathrooms as Title IX violations). Additionally,
despite DOJ’s intervention, West Virginia prevailed at the district court in B.P.J.
because “Title IX authorizes sex separate sports in the same manner as” the state
statute. 2023 WL 111875, at *9. Contra Fact Sheet, R. 1-4, PageID#73.
Tellingly, Defendants never look beyond the documents’ “self-serving labels”
to their content. PI Order, R. 86, PageID#1968. “Labels . . . do not control the
inquiry. Legal effects do.” Arizona, 40 F.4th at 389; see Detroit Edison Co. v. EPA,
496 F.2d 244, 249 (6th Cir. 1974); Appalachian Power Co. v. EPA, 208 F.3d 1015,
1024 (D.C. Cir. 2000). The substance of Interpretation and Fact Sheet make clear
that they are cudgels designed to be used against regulated entities.
The documents leave no “discretion” to agency officials to decide that
discrimination on the basis of sex does not encompass discrimination on the basis of
sexual orientation or gender identity. Defendants’ Brief at 40.6 The documents
6
In relying on Jama v. Department of Homeland Security, Defendants forget that
they have conceded that the documents constitute the consummation of the agencies’
decision-making process. 760 F.3d 490, 496 (6th Cir. 2014) (ruling that alien failed
28
legally bind the Department to its expansion of Title IX, which has a “direct effect
on” the “day-to-day business” of Plaintiffs because the Department enforces Title
IX against regulated entities. Parsons, 878 F.3d at 167 (quotation omitted). Unlike
the report to Congress in Parsons which “other agencies or law-enforcement
officers” were not “required to consider,” the Department must follow its
Interpretation and Fact Sheet. Id. at 169. And Department officials have “authority
to initiate investigations” without any private party filing a complaint. Defendants’
Brief at 5.
Defendants further argue that their actions are not final because the documents
“merely summarize the agencies’ understanding of” Title IX or “simply inform the
public of the agencies’ interpretation of Titles VII and IX.” Defendants’ Brief at 31,
38. Even if the documents were as benign as Defendants claim, such “general
statements of policy” are final agency action when, as here, an agency “threatens
enforcement” of policies that are “binding on [their] face or in practice.” Ctr. for
Auto Safety v. NHTSA, 452 F.3d 798, 807 (D.C. Cir. 2006). “[R]egulated entities
are not without recourse” to challenge a nominally interpretive rule. Perez v. Mortg.
Bankers Ass’n, 575 U.S. 92, 105-06 (2015); see Nat’l Mining Ass’n v. McCarthy,
758 F.3d 243, 251 (D.C. Cir. 2014) (Kavanaugh, J.); Pharm. Res. & Mfrs. of Am. v.
to satisfy this first Bennett prong and thus could not challenge “intermediate steps in
the removal” process).
29
U.S. Dep’t of Health & Human Servs., 138 F. Supp. 3d 31, 41-45 (D.D.C. 2015).
What matters is the actual effect of the challenged actions.
2. Plaintiffs lack an adequate alternative remedy.
Raising arguments as defenses in future enforcement proceedings is not the
sort of adequate remedy contemplated in 5 U.S.C. § 704. Section 704 ensures “that
the APA’s general grant of jurisdiction to review agency decisions is not duplicative
of more specific statutory procedures for judicial review.” Bangura v. Hansen, 434
F.3d 487, 501 (6th Cir. 2006). But that provision must be construed narrowly, so as
not 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).
When administrative action imposes immediate consequences on regulated
parties, courts routinely allow pre-enforcement challenges even if the parties could
raise the same arguments as defenses in an eventual enforcement action. For
example, Sackett v. EPA, 566 U.S. 120 (2012), allowed a pre-enforcement challenge
to an EPA compliance order even though “judicial review ordinarily comes by way
of a civil action brought by the EPA.” Id. at 127. Because the plaintiffs could not
“initiate that process” and instead had to “wait for the Agency to drop the hammer”
while accruing daily penalties, APA review was the only “adequate remedy.” Id. at
127, 131.
The same reasoning applies here. The challenged guidance forces Plaintiffs
30
to choose between complying with the guidance, which would cause irreparable
injury, or violating the guidance at the risk of significant financial penalties. Like
the proposed alternatives in Sackett, the latter option would require Plaintiffs to
“wait for the [agencies] to drop the hammer,” Sackett, 566 U.S. at 127. That is not
an adequate remedy. See Texas, 201 F. Supp. 3d at 826-27 (rejecting the same
“alternative remedy” argument when States challenged nearly identical guidance
issued by a previous administration).
The only case Defendants cite to the contrary is inapposite. See Defendants’
Brief at 42-43 (citing Garcia v. Vilsak, 563 F.3d 519 (D.C. Cir. 2009)). To remedy
the USDA’s yearslong failure to investigate civil rights complaints, Congress gave
complainants “a choice between going to court immediately or first renewing their
administrative complaints” with the USDA. Garcia, 563 F.3d at 521, 524. But the
D.C. Circuit ruled that “Congress’s special remedial statute” had not given
complainants the right to “pursue their failure-to-investigate claims under the APA
simultaneously in the same lawsuit.” Id. at 521, 523. That unique situation hardly
forbids pre-enforcement challenges of Title IX regulations.
3. Title IX does not provide an exclusive enforcement

structure that precludes jurisdiction.
District court jurisdiction over pre-enforcement challenges to agency action is
precluded only if Congress’s intent to preclude jurisdiction is “fairly discernible in
the statutory scheme.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994)
31
(quotation marks omitted). In Thunder Basin, the Court held that the Mine Safety
and Health Act satisfied that standard because it established a “comprehensive
enforcement structure” consistent with legislative history of a “clear concern with
channeling and streamlining the enforcement process.” Id. at 216.
Defendants contend that the “review process . . . found in Title IX” is
“remarkably similar” to the one in Thunder Basin because it provides for an
administrative hearing followed by judicial review. Defendants’ Brief at 45-46. But
the only provision of Title IX that addresses judicial review is 20 U.S.C. § 1683,
which provides that:
Any department or agency action taken pursuant to section 1682

of this title shall be subject to such judicial review as may
otherwise be provided by law for similar action taken by such
department or agency on other grounds. In the case of action,
not otherwise subject to judicial review, terminating or refusing
to grant or to continue financial assistance upon a finding of
failure to comply with any requirement imposed pursuant to
section 1682 of this title, any person aggrieved (including any
State or political subdivision thereof and any agency of either)
may obtain judicial review of such action in accordance with
chapter 7 of Title 5 . . . .
(Emphases added.) Thus, the “elaborate procedural scheme” that Defendants
reference, Defendants’ Brief at 45, is established not by Title IX’s “statutory
scheme” but instead by Department regulations and other statutes governing
procedures for specified agency actions, including withholding federal funding, see
Defendants’ Brief at 5-6 (citing 34 C.F.R. §§ 100.7-.8; 20 U.S.C. §§ 1234g(a),
32
1683).
But the “agency action taken pursuant to section 1682,” 20 U.S.C. § 1683,
that is being challenged in this case is not the withholding of federal funds. It is the
issuance of “rules, regulations, or orders of general applicability.” Id. § 1682. And
courts have held that the APA is the relevant law that provides for judicial review of
an agency’s rules. Romeo Cmty. Schs. v. U.S. Dep’t of Health, Educ. & Welfare,
438 F. Supp. 1021, 1028 (E.D. Mich. 1977) (allowing pre-enforcement APA
challenge to Title IX regulation), aff’d, 600 F.2d 581 (6th Cir. 1979); cf. Marlow v.
U.S. Dep’t of Educ., 820 F.2d 581, 582 (2d Cir. 1987) (similar judicial-review
provision in the Rehabilitation Act did not preclude APA review). Indeed, Title IX’s
statutory scheme “explicitly contemplates a cause of action under the A.P.A. for
redress of unlawful agency action ‘not otherwise subject to judicial review.’”
Romeo, 438 F. Supp. at 1029 (quoting 20 U.S.C. § 1683). Because no “elaborate
statutory framework exists covering Plaintiffs’ claims,” there is no reason to think
that Congress intended to preclude district-court review under the APA. Texas, 201
F. Supp. 3d at 826 (rejecting identical argument in challenge to similar guidance).
This case is distinguishable from Thunder Basin in another important respect.
The statutory claims there “ar[o]se under the Mine Act and f[e]ll squarely within the
Commission’s expertise.” 510 U.S. at 214. The claims here, by contrast, include
procedural challenges and claims that the guidance violates Title IX and the
33
Constitution. These claims are “wholly collateral” to Title IX’s administrative-
review scheme and do not involve the sort of fact-driven compliance questions that
might benefit from administrative review. Id. at 212; see also Free Enterprise Fund
v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010); Romeo, 438 F. Supp.
at 1028. Plaintiffs need not “bet the farm . . . by taking the violative action before
testing the validity of the” Interpretation and Fact Sheet. Free Enterprise Fund, 561
U.S. at 490 (quotation marks omitted).
The only two cases Defendants cite for extending Thunder Basin to these Title
IX claims predated Thunder Basin and involved attempts to enjoin pending
administrative proceedings under Title VI. Defendants’ Brief at 46 (citing Rogers v.
Bennett, 873 F.2d 1387 (11th Cir. 1989); Taylor v. Cohen, 405 F.2d 277 (4th Cir.
1968) (en banc)).
B. Plaintiffs are likely to prevail on their procedural APA claims.
1. The Interpretation and Fact Sheet are legislative rules

issued without notice and comment.
“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 5 U.S.C. § 553). A rule that “intends to create
new law, rights or duties” is legislative. Id. (quotation marks omitted). And “a rule
that ‘adopts a new position inconsistent with any of . . . existing regulations’ is

34
necessarily legislative.” Id. (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S.
87, 100 (1995) (alteration adopted)).
“The notice and comment rulemaking requirements were intended to ‘assure
fairness and mature consideration of rules of general application.’” Dismas
Charities, Inc. v. DOJ, 401 F.3d 666, 678 (6th Cir. 2005) (quoting NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 764 (1969) (plurality opinion)). A “central purpose[] of
the requirement . . . is to give those with interests affected by rules the chance to
participate in [their] promulgation.” Id.
The Department’s Interpretation and Fact Sheet are legislative rules. They
“create new law,” Azar, 908 F.3d at 1042, by imposing on regulated entities a new
obligation not to discriminate based on sexual orientation or gender identity—an
obligation that appears nowhere in Title IX and that Bostock did not impose, either.
Moreover, both the Interpretation and Fact Sheet contradict the Department’s
existing regulations and thus effect “a substantive change in the regulations.”
Guernsey Mem’l Hosp., 514 U.S. at 100 (quotation marks omitted). The
Interpretation and Fact Sheet cannot be reconciled with Title IX itself and
Department regulations expressly authorizing Title IX recipients to draw distinctions
based on biological sex—including by providing separate athletic teams and living
facilities. See 20 U.S.C. § 1686; 34 C.F.R. §§ 106.33, 106.37(c), 106.41(b); Adams,
2022 WL 18003879, at *1.
35
Because the documents are legislative rules, the Department was required to
give the States and other affected parties notice and an opportunity to participate.
Indeed, it is hard to imagine an issue more in need of public input and deliberation.
Defendants raise two arguments in response. First, they argue that the
challenged documents are not legislative rules because the documents say they do
not “have the force or effect of law.” Defendants’ Brief at 49. Second, they argue
that the documents merely “interpret” what Title IX means in light of Bostock.
Defendants’ Brief at 53. Both arguments fail.
Defendants’ first argument improperly focuses on the “particular label[s]” the
agencies placed on the documents rather than on “the substance of what” they in fact
have done. Detroit Edison Co., 496 F.2d 244 at 249 (quotation marks omitted). “It
is well-established that an agency may not escape the notice and comment
requirements . . . by labeling a major substantive legal addition to a rule a mere
interpretation.” Appalachian Power Co., 208 F.3d at 1024. When Congress has
given an agency some authority to issue rules and regulations, as it has for the
Department, 20 U.S.C. § 1682, their nominally interpretive rules are more likely to,
in effect, be legislative ones. Mann Constr., Inc. v. United States, 27 F.4th 1138,
1144 (6th Cir. 2022).
And when the substantive effect of the challenged documents is considered,
the only permissible conclusion is that the Interpretation and Fact Sheet are
36
legislative. The Interpretation and Fact Sheet “effec[t] a substantive change in the
regulations” by “adopt[ing] a new position inconsistent with . . . [the Department’s]
existing regulations” and are thus “necessarily legislative.” Azar, 908 F.3d at 1042
(first alteration in original) (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87,
100 (1995)). Plus, they are being “applied by the agency in a way that indicates
[they are] binding.” Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002).7
Defendants may not simply point to Bostock to justify their change in position,
since that decision was “narrow” and “limited only to Title VII itself.” Pelcha v.
MW Bancorp, Inc., 988 F.3d 318, 324 (6th Cir. 2021). The Interpretation and Fact
Sheet did not merely “remind parties of existing statutory or regulatory duties” but
rather imposed new duties and “chang[ed] the text” of the statute and regulations
they “profess[ed] to interpret.” POET Biorefining, LLC v. EPA, 970 F.3d 392, 407
(D.C. Cir. 2020). Because neither Title IX, its implementing regulations, nor
Bostock “compels or logically justifies” the Department’s Interpretation or Fact
Sheet, those documents are legislative rules issued in violation of the APA’s notice-
and-comment requirements. Nat’l Council for Adoption v. Blinken, 4 F.4th 106, 113
(D.C. Cir. 2021).
7
Unlike Plaintiff States, the religious college in School of the Ozarks v. Biden, was
“specifically exempted from the prohibition on sex discrimination in education
under Title IX.” 41 F.4th 992, 998-99 (8th Cir. 2022) (citing 20 U.S.C.
§ 1681(a)(3)). And the memorandum challenged there did “not specifically address
the subject of housing for students at colleges and universities.” Id. at 996.
37
Defendants are not doing Plaintiffs “a favor” by “announc[ing] the
interpretation in advance of enforcement” of a “less than crystalline statute.”
Defendants’ Brief at 48 (quoting Hoctor v. USDA, 82 F.3d 165, 167 (7th Cir. 1996));
see Mann Constr., 27 F.4th at 1144 (ruling IRS notice was legislative rule despite
claimed purpose “to inform taxpayers of” agency’s plans). Instead, they are enacting
the policy of President Biden’s executive order by obliterating 20 U.S.C. § 1686—
which expressly allows sex-segregated living facilities but is completely ignored in
the challenged documents and Defendants’ Brief—and numerous longstanding
regulations.
2. The Interpretation and Fact Sheet are arbitrary and

capricious.
Plaintiffs are also likely to succeed on their claim that the Interpretation and
Fact Sheet are arbitrary and capricious because they conflict with prior agency
guidance, including the Department’s initial post-Bostock guidance and
longstanding regulations that allow—and sometimes require—distinctions based on
biological sex. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.
Ct. 1891, 1913-14 (2020). While the district court, having ruled that Plaintiffs were
likely to succeed on their notice-and-comment claim, did not address this claim, the
Court “may affirm the judgment on any ground supported by the record.” Long v.
Insight Comms. of Cent. Ohio, LLC, 804 F.3d 791, 794 (6th Cir. 2015).
38
The Department failed to adequately acknowledge its change in position, to
provide “good reasons” for that change, and to consider the “serious reliance
interests” at stake. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)
(quotation marks omitted); see FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). Institutions relied on this prior guidance, including in designing and
constructing facilities. For instance, had they known the Department would
eventually interpret Title IX to prohibit discrimination based on gender identity, they
may have offered more single-occupant living facilities. But the Department did not
consider these interests—it merely noted that it had issued contrary guidance in the
past. Interpretation, 86 Fed. Reg. at 32,637.
C. Plaintiffs are likely to succeed on their claims that the

Interpretation and Fact Sheet are contrary to law.
1. The Interpretation and Fact Sheet are contrary to Title

IX.
The documents are substantively unlawful because their purported
interpretation is contrary to Title IX.
As an initial matter, the Department cannot simply point to Bostock to justify
its interpretation of Title IX. Bostock concerned only Title VII; expressly noted that
“other federal or state laws that prohibit sex discrimination”—like Title IX—were
not “before” the Court; and refused to “prejudge any such question” about what those
statutes require. 140 S. Ct. at 1753. Nor is Bostock’s analysis necessarily applicable
39
to Title IX. Pelcha, 988 F.3d at 324 (declining to extend Bostock to another
antidiscrimination statute because Bostock “was limited only to Title VII itself”).
Title IX is more “about schools and children—and the school is not the workplace.”
Adams, 2022 WL 18003879, at *11. “Title VII differs from Title IX in important
respects.” Meriwether v. Hartop, 992 F.3d 492, 510 n.4 (6th Cir. 2021). It therefore
“does not follow that principles announced in the Title VII context automatically
apply in the Title IX context.” Id.
The Department must instead justify its interpretation based on Title IX itself.
But the Interpretation and Fact Sheet squarely conflict with Title IX. Title IX
provides that no person “shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
As Meriwether emphasized, Title IX—unlike Title VII—expressly authorizes
separation based on sex in certain circumstances. 992 F.3d at 510 n.4. For example,
it allows certain single-sex educational institutions and organizations, 20 U.S.C.
§ 1681(a)(1)-(9), and “separate living facilities for the different sexes,” id. § 1686;
see 118 Cong. Rec. 5,807 (1972) (statement of Sen. Bayh, chief Senate sponsor)
(explaining that this statutory provision ensures that covered institutions may
“permit differential treatment by sex . . . in sports facilities or other instances where
40
personal privacy must be preserved”); 34 C.F.R. § 106.33 (allowing “separate toilet,
locker room, and shower facilities on the basis of sex”).
The Department also allows covered programs to “operate or sponsor separate
teams for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport,” id. § 106.41(b), and
even requires universities to consider sex in allocating athletic scholarships, id. at
§ 106.37(c); Meriwether, 992 F.3d at 510 n.4. These regulations underscore that
“[p]hysical differences between men and women . . . are enduring” and that the
“‘two sexes are not fungible’” but rather have “‘inherent differences.’” United
States v. Virginia, 518 U.S. 515, 533 (1996) (Ginsburg, J.) (cleaned up) (quoting
Ballard v. United States, 329 U.S. 187, 193 (1946)).
As the Department has always construed the term, “sex” in Title IX refers
only to biological sex, not gender identity. E.g., 85 Fed. Reg. 30,026, 30,178 (“Title
IX and its implementing regulations include provisions that presuppose sex as a
binary classification.”).8 That was the ordinary meaning of the term when Title IX
was enacted. See Adams, 2022 WL 18003879, at *14 (collecting dictionary
8
Title IX only uses “sex,” but most Americans still consider both “gender” and “sex”
as referring to “[e]ither of the two divisions, designated male and female, by which
most organisms are classified on the basis of their reproductive organs and
functions.” Gender, The American Heritage Dictionary (5th ed. 2011); Sex, The
American Heritage Dictionary (5th ed. 2011) (same).
41
definitions); Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 632-33 (4th Cir.
2020) (Niemeyer, J., dissenting) (same).
Statutory context confirms this binary understanding of “sex.” See 20 U.S.C.
§ 1681(a)(2) (an institution may change “from . . . . admit[ting] only students of one
sex to . . . admit[ting] students of both sexes” (emphasis added)); id. § 1681(a)(6)(B)
(referring to ‘‘Men’s’’ and ‘‘Women’s’’ associations and organizations for
‘‘Boy[s]’’ and ‘‘Girl[s],’’ “the membership of which has traditionally been limited
to persons of one sex” (emphasis added)); cf. 85 Fed. Reg. at 30,178 (“In
promulgating regulations to implement Title IX, the Department expressly
acknowledged physiological differences between the male and female sexes.”).
Because Title IX expressly authorizes separation based on biological sex in
myriad contexts, including athletics and living facilities, it precludes the
Department’s view that a covered program may not prevent an individual of one sex
from using facilities or competing on teams designated for the other sex, or otherwise
differentiate between the sexes in circumstances where those differences matter.
The text of Title IX is materially different from Title VII in another respect:
Title IX prohibits discrimination “on the basis of sex,” 20 U.S.C. § 1681(a)
(emphasis added), rather than “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1). That
distinction is significant. Bostock concluded that Title VII’s prohibition on
discrimination “because of” sex imposed a but-for causation requirement, which the
42
Court acknowledged “can be a sweeping standard.” 140 S. Ct. at 1739; see id. at
1741-42 (acknowledging that “[w]hen an employer fires an employee because she
is homosexual or transgender, two causal factors may be in play—both the
individual’s sex and something else (the sex to which the individual is attracted or
with which the individual identifies)”).
Title IX, by contrast, prohibits only discrimination “on the basis of sex.” That
language makes clear that biological sex must be the sole reason for the
discrimination. “A statutory provision’s use of the definite article
‘the,’ . . . indicates that Congress intended the term modified to have a singular
referent.” SEC v. KPMG LLP, 412 F. Supp. 2d 349, 387-88 (S.D.N.Y. 2006); accord
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004).9
Nor do lower federal-court decisions support the Department’s interpretation
of Title IX. The en banc Eleventh Circuit has now ruled that “separating the use of
male and female bathrooms in the public schools based on a student’s biological sex
. . . comports with Title IX.” Adams, 2022 WL 18003879, at *1. And the Fourth
Circuit’s majority decision in Grimm, which completely ignored 20 U.S.C. § 1686,
suffers from the same shortcomings as the Interpretation. See Grimm, 972 F.3d at
9
Even if the Bostock opinion used “because of” and “on the basis of”
interchangeably, “the language of an opinion is not always to be parsed as though”
it were “the language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341
(1979).
43
634 (Niemeyer, J., dissenting). Dodds v. U.S. Department of Education, 845 F.3d
217 (6th Cir. 2016) (per curiam), does not support Defendants’ position either.
There, this Court declined to stay a preliminary injunction and did not definitively
address whether the school district had violated Title IX. Id. at 222. As Judge Sutton
pointed out, the Supreme Court reached exactly the opposite conclusion when it
granted a similar stay request. Id. at 222 (Sutton, J., dissenting). Notably, the
Department failed even to mention Meriwether or any other decision that would
undermine its Interpretation.
2. The Interpretation and Fact Sheet violate the U.S.

Constitution.
Spending Clause. Congress enacted Title IX pursuant to its Spending Clause
authority, and the documents violate the Spending Clause for three separate reasons.
First, Title IX does not unambiguously prohibit discrimination based on
sexual orientation or gender identity. If “Congress intends to impose a condition on
the grant of federal moneys,” as it did under Title IX, “it must do so unambiguously.”
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); see Kentucky v.
Yellen, 54 F.4th 325, 354 (6th Cir. 2022), rehearing en banc requested. And
Congress did not “unambiguously” say so. Adams, 2022 WL 18003879, at *17-18.
Nor does Title IX unambiguously prohibit separating athletic teams or living
facilities based on biological sex. Both the statute and its implementing regulations
expressly allow sex-separated facilities. See 20 U.S.C. § 1686; 34 C.F.R. § 106.33;

44
see Adams, 2022 WL 18003879, at *17 (“The notion that the School Board could or
should have been on notice that its policy of separating male and female bathrooms
violates Title IX and its precepts is untenable.”). And longstanding regulations
expressly authorize sex-separated sports teams. See id. at *18 (citing 34 C.F.R.
§ 106.41(b)). Because Congress did not “provide[] clear notice to the States of their
[purported] obligation” to treat individuals according to their gender identity, the
Department may not impose that obligation under the guise of a regulatory
“interpretation.” Pontiac, 584 F.3d at 271 (plurality opinion).
Second, the Department’s guidance uses the threat of withholding substantial
federal funding to coerce Plaintiff States into adopting the agency’s preferred
policies. This “is much more than ‘relatively mild encouragement’—it is a gun to
the head.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 581 (2012) (opinion
of Roberts, C.J.) (quoting South Dakota v. Dole, 483 U.S. 203, 211 (1987)); see
Kentucky v. Yellen, 563 F. Supp. 3d 647, 658 (E.D. Ky. 2021) (ruling American
Rescue Plan Act unconstitutionally coercive regardless of whether the funding
provisions were unambiguous), merits ruling affirmed on other grounds, 54 F.4th
325 (6th Cir. 2022). And if the statutes really meant what Defendants now say they
mean, then those statutes would no doubt be coercive.
Third, the Department’s guidance attempts “to induce the States to engage in
activities that would themselves be unconstitutional.” Dole, 483 U.S. at 210. For
45
instance, the Department’s position that the use of biologically accurate pronouns
could constitute discrimination runs headlong into the First Amendment. In
Meriwether, this Court ruled that a state university in Ohio, a Plaintiff State,
“flouted” the First Amendment and “violated [a professor’s] free-speech rights” by
punishing the professor for declining to use a student’s “preferred pronouns.” 992
F.3d at 511-12.
Structural provisions. The Department’s purported “interpretation” of Title
IX constitutes an unlawful exercise of legislative authority that exceeds the agency’s
jurisdiction. See U.S. Const. art. I, § 1. Even if Title IX were ambiguous with
respect to the issues the Interpretation and Fact Sheet address, those issues are ones
of “deep . . . political significance” that must be decided by Congress. King v.
Burwell, 576 U.S. 473, 486 (2015) (quotation marks omitted); see West Virginia v.
EPA, 142 S. Ct. 2587, 2609-16 (2022). Nor may an administrative agency interpret
a statute in a manner that intrudes so significantly on States’ traditional authority
without clear evidence that Congress intended that result. Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947); U.S. Const. amend. X.
D. Preliminary relief from the Interpretation and Fact Sheet prevents

irreparable harm and furthers the public interest.
The preliminary injunction of the Department’s guidance serves the public
interest. Rather than resolving uncertainty, the Interpretation and Fact Sheet created
uncertainty. The documents conflict with Title IX’s clear language, including 20
46
U.S.C. § 1686, and numerous regulations, including 34 C.F.R. §§ 106.33, 106.37(c),
106.41(b). And they rely on outdated opinions such as the vacated original panel
decision in Adams. Compare Interpretation, 86 Fed. Reg. at 32,639 (citing Adams,
968 F.3d 1286), with Adams, 2022 WL 18003879, at *1, *11-14 (reaching the exact
opposite conclusion from the documents challenged here). Leaving the
Department’s guidance in place does not “educate the public.” Defendants’ Brief at
19. It miseducates the public.
Without the preliminary injunction, Plaintiffs would once again experience
the compliance costs and threats to sovereignty that the Department intended. These
harms are irreparable. Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018) (A State’s
“inability to enforce its duly enacted” laws “inflicts irreparable harm on the State.”);
Kentucky, 2023 WL 164614, at *8 (ruling that “compliance costs in the absence of
a preliminary injunction” are “irreparable” due to the “federal government’s
sovereign immunity”).
As explained above, at least sixteen Plaintiff States have laws that arguably
conflict with the Interpretation and Fact Sheet. It is hard to see, for example, how
West Virginia’s law limiting female sports teams to biological girls, W. Va. Code
Ann. § 18-2-25d, does not conflict with the documents. Many schools, universities,
and athletic organizations throughout Plaintiff States, including ones directly
operated by the States, would also encounter similar difficulties. See, e.g., PI Ex. D
47
¶¶ 4-5, R. 11-4, PageID#176-77. These irreparable sovereign harms alone are
sufficient to warrant relief.
Enforcement of the challenged guidance would also harm the important
interests that these and other laws are intended to protect—including privacy, safety,
and First Amendment freedoms. “When constitutional rights are threatened or
impaired, irreparable injury is presumed.” Doe v. Univ. of Cincinnati, 872 F.3d 393,
407 (6th Cir. 2017); see Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,
67 (2020) (per curiam) (“The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.”).
A regulated party is not required to wait until there is a pending enforcement
action to seek preliminary relief. See Susan B. Anthony List, 573 U.S. at 158. And
this is not a case about “ifs.” Contra D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327
(6th Cir. 2019). As pointed out above, the Department is already investigating a
school district in Texas—not covered by the preliminary injunction—after the
ACLU of Texas filed a complaint reliant on the Interpretation and Fact Sheet.
Defendants, meanwhile, suffer no harm if this Court affirms the injunction.
Because the challenged guidance is procedurally and substantively unlawful,
Defendants have no valid interest in enforcing it. Deja Vu of Nashville, Inc. v. Metro.
Gov’t, 274 F.3d 377, 400 (6th Cir. 2001).
48
E. The district court did not abuse its discretion by preliminarily

protecting all Plaintiff States.
Rather than granting a nationwide injunction, the district court heeded Chief
Judge Sutton’s encouragement to limit the preliminary injunction to the Plaintiff
States who chose to join this litigation. PI Order, R. 86, PageID#1987 (citing
Arizona v. Biden, 40 F.4th 375, 396 (6th Cir. 2022) (Sutton, C.J., concurring)).
Limiting the injunction in this way still protects all Plaintiff States, as they would be
were they to succeed in having the challenged documents vacated.
Below, Defendants mostly agreed: “If this Court were to enjoin any aspect of
the challenged documents . . . its injunction should apply only to the Plaintiff States,
excluding those in the Fourth and Seventh Circuits.” PI Opp., R. 48, PageID#337.
Such an injunction would have protected 17 of the 20 Plaintiff States, all except
Indiana, South Carolina, and West Virginia. Id. at PageID#338.10
Having received almost entirely what they requested for the Interpretation and
Fact Sheet injunction, Defendants now want to slice and dice the preliminary
injunction order even further. Defendants’ Brief at 59-61. Other than the request to
exclude three States, Defendants failed to raise their proposed limitations below.
Anyhow, the proposed limitations are all meritless.
10
For the Technical Assistance Document, Defendants also asked relief to be bound
by the Sixth Circuit’s Title VII decision in EEOC v. G.R. Harris Funeral Homes,
Inc., 884 F.3d 560 (6th Cir. 2018), whose judgment was affirmed but reasoning
disagreed with in Bostock, 140 S. Ct. at 1754. PI Opp., R. 48, n.13 PageID#338.
49
First, Defendants request the Court limit the preliminary injunction to exclude
any Plaintiff State without a law that arguably conflicts. Defendants’ Brief at 59-
60. But as explained above, sixteen Plaintiff States have such laws. The district
court did not abuse its discretion in protecting the remaining four Plaintiff States
(Georgia, Kansas, Missouri, and Ohio). In APA cases, one of the ultimate remedies
is completely vacating the unlawful agency action nationwide. 5 U.S.C. § 706; see
Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.
1998); E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 987 (9th Cir. 2020);
Texas, 2022 WL 4835346, at *17. While this case is pending, this Court should not
punish Georgia, Kansas, Missouri, and Ohio by denying relief they would receive at
the end of the case. Limiting preliminary injunctions to the parties involved protects
“States that did not participate in the lawsuit.” Arizona, 40 F.4th at 395 (Sutton,
C.J., concurring). No similar concern applies here.
Excluding the four aforementioned Plaintiff States threatens their ability to
create new laws to codify longstanding practice or remedy emerging threats to First
Amendment rights; subjects them to compliance costs; and leaves them vulnerable
to loss of federal funds. Georgia, for example, recently created an oversight
committee with the express power to prohibit males from competing in girls’ sports
at high schools that receive state funding. Ga. Code Ann. § 20-2-316. And preferred
50
pronoun requirements threaten the First Amendment rights of professors in Ohio.
See Meriwether, 992 F.3d at 511-12.
Second, Defendants ask the Court to rewrite the injunction somehow to allow
them to enforce unspecified portions of the guidance relating to “discrimination
based on sexual orientation.” Defendants’ Brief at 60. Defendants cite no authority
other than Califano v. Yamasaki, 442 U.S. 682, 702 (1979). But, under Califano,
“the scope of injunctive relief is dictated by the extent of the violation established.”
Id. If the Interpretation and Fact Sheet are legislative, then the Department had no
authority at all to promulgate them without notice and comment.
Third, Defendants ask the Court to exclude “all States governed by circuit
precedent indicating that discrimination based on gender identity or sexual
orientation is unlawful sex discrimination, including States located within this
Circuit.” Defendants’ Brief at 61 (emphasis added). This request is baffling.
For starters, Defendants did not take such a view of Sixth Circuit precedent
below. PI Opp., R. 48, PageID#337-38. The pre-Bostock decisions Defendants now
cite dealt with Title VII or, as with Dodds, did not determine the merits of the issue
presented. Subsequent decisions have limited Bostock to Title VII, Pelcha, 988 F.3d
at 324, and indicated that “Title VII differs from Title IX in important respects,”
Meriwether, 992 F.3d at 510 n.4. Plus, even with the Fourth Circuit’s erroneous
51
decision in Grimm, West Virginia has prevailed at this point in its defense of its
athletics law. B.P.J., 2023 WL 111875, at *9.
The fundamental problem with Defendants’ request, however, is that “each of
the 13 federal circuit courts follows only its own precedent.” Bryan A. Garner et al.,
The Law of Judicial Precedent 37 & n.11 (2016). And this preliminary injunction
turns on whether the challenged documents complied with the APA. No other court
in the country has reviewed the Department’s guidance for such compliance.
Having every State sue within its federal circuit would be more likely to create
conflicts than resolve them. See Feller v. Brock, 802 F.2d 722 (4th Cir. 1986)
(describing conflicting injunctions). A district court, “in exercising its equity
powers, may command persons properly before it to cease or perform acts outside
its territorial jurisdiction.” Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952).
The only case Defendants have left for their remarkable request is a divided Ninth
Circuit opinion where the federal government itself sought a nationwide injunction.
United States v. AMC Ent., Inc., 549 F.3d 760 (9th Cir. 2008). The district court
acted reasonably in limiting its preliminary injunction to Plaintiff States.
III. This Court Should Dismiss as Moot Defendants’ Appeal of the

Preliminary Injunction of the Technical Assistance Document.
A. The proper judgment is dismissal of the voluntarily mooted appeal.
Plaintiffs and Defendants agree that EEOC’s failure to appeal the vacatur of
the Technical Assistance Document in Texas, 2022 WL 4835346, at *17, means that
52
“there is no longer a live controversy regarding whether this document is valid,”
Defendants’ Brief at 8 n.2. The document is no more. Thus, the proper remedy is
for this Court to dismiss Defendants’ appeal of the preliminary injunction of the
Technical Assistance Document as moot. This Court should not, however, vacate
that portion of the district court’s order because Defendants bear the blame for
voluntarily relinquishing their right to appeal Texas.
“Vacatur is an ‘extraordinary remedy,’ and it is ‘Appellants’ burden, as the
party seeking relief from the status quo of the lower court judgment, to demonstrate
not merely equivalent responsibility for the mootness, but equitable entitlement’ to
vacatur.” Blankenship v. Blackwell, 429 F.3d 254, 258 (6th Cir. 2005) (cleaned up)
(quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994)).
This Court also considers public interest, but the “question of fault is central to” the
Court’s “determination regarding vacatur.” Ford, 469 F.3d at 505.
Here, Defendants-Appellants are aware that this portion of their appeal is
moot but have entirely failed to carry their burden of justifying vacatur. Nor could
they if they tried. When “the losing party has voluntarily forfeited his legal remedy
by the ordinary processes of appeal or certiorari,” such as by settling, he
“surrender[s] his claim to the equitable remedy of vacatur.” U.S. Bancorp Mortg.,
513 U.S. at 25. And because the “voluntary action of the defendants occurred soon
after the district court granted . . . relief against those very parties,” that raises “the
53
inference that ‘mootness was [their] purpose or that [they] knew or should have
known that [their] conduct was substantially likely to moot the appeal.” Id. at 506
n.10 (alterations in original) (quoting Russman v. Bd. of Educ., 260 F.3d 114, 122
(2d Cir.2001)).
This portion of the appeal did not become moot by “happenstance,” that is
“due to circumstances unattributable to any of the parties.” Id. at 23 (quoting
Karcher v. May, 484 U.S. 72, 82, 83 (1987)). EEOC, represented by DOJ,11 could
have appealed Texas to the Fifth Circuit but, for whatever reason, chose not to. And
the mootness did not “result[] from the unilateral action of the party who prevailed
in the lower court.” Id. The Defendants lost in this case as well. Defendants have
nobody to blame but themselves for this portion of their appeal becoming moot.
Even if the Court decides to vacate the relevant portion of the preliminary
injunction order, there is no reason for the Court to decide in the first instance that
“the States’ claims against EEOC” should be entirely dismissed as moot,
Defendants’ Brief at 8 n.2, or for this Court to “reverse on the merits,” Defendants’
Brief at 63. To protect themselves from the EEOC Chair unilaterally inflicting harm
on them again, Plaintiffs requested relief in their complaint that goes beyond
vacating the Technical Assistance Document. Compl., R. 1, PageID#34. This Court
11
The defendants in Texas also included Charlotte Burrows and Merrick Garland in
their official capacities. 2022 WL 4835346, at *1 n.1.
54
should allow litigation in the district court to continue.
B. Plaintiffs had standing to challenge the EEOC’s guidance.
This Court need not, and should not, opine on whether Plaintiffs had standing
to challenge the Technical Assistance Document, especially because the court in the
Texas litigation, whose vacatur of the document is now final, ruled a State does have
standing to challenge the document. See Not. of Supplemental Auth. Attachment A,
R. 82-1, PageID#1187-1215 (providing Texas v. EEOC, No. 2:21-CV-194-Z (N.D.
Tex. May 26, 2022), ECF No. 53).
But if this Court opines on standing, Plaintiffs had standing to challenge the
Technical Assistance Document for reasons mostly similar to those for the
Department’s guidance. PI Order, R. 86, PageID#1950-58. The document exposed
Plaintiffs to damages liability by expanding Title VII. Under the Technical
Assistance Document, employers “could contribute to an unlawful hostile work
environment” if they “intentionally and repeatedly” decline to use biologically
inaccurate preferred pronouns. Compl. Ex. D, R. 1-5, PageID#82. Employers had
to allow men who identify as women to use women’s “bathrooms, locker rooms, and
showers.” Id. And employers could not have sex-specific dress codes. Id. at
PageID#81.
True, Bostock was a Title VII case. But it dealt only with “[f]iring employees”
“simply for being homosexual or transgender.” 140 S. Ct. at 1753. The Supreme
55
Court expressly did “not purport to address bathrooms, locker rooms, or anything
else of the kind” under Title VII. Id. While “[a]n individual’s homosexuality or
transgender status is not relevant to employment decisions” about hiring and firing,
id. at 1741 (emphasis added), sex is relevant to decisions about locker rooms,
showers, and the like, where biological differences between the two sexes matter.
Accordingly, Plaintiffs have numerous laws and policies that at least arguably
conflicted with the Technical Assistance Document. See Compl. ¶¶ 98-99, R. 1,
PageID#18-20 (copies in Addendum); PI Ex. E ¶ 6, R. 11-5, PageID#179. The
guidance invited employees to “fil[e] a charge of discrimination against . . . a state
or local government employer.” Id. at PageID#83. EEOC has previously enforced
such a broad understanding against federal employees. E.g., Lusardi v. McHugh,
2015 WL 1607756, at *6 (EEOC Apr. 1, 2015). The vacatur of the Technical
Assistance Document redressed many of Plaintiffs’ harms.
Because Defendants voluntarily mooted this portion of their appeal, this Court
lacks jurisdiction to consider the merits of the APA challenge to the now-vacated
document. In any case, the district court correctly ruled that the Technical
Assistance Document, at a minimum, was an invalid legislative rule issued without
the required notice and comment. PI Order, R. 86, PageID#1984.
56
CONCLUSION
Plaintiff States respectfully request that this Court affirm the district court’s
preliminary injunction order as to the Department’s Interpretation, Dear Educator
Letter, and Fact Sheet and dismiss as moot Defendants’ appeal of the preliminary
injunction of the now-vacated EEOC Technical Assistance Document.
Respectfully submitted,
JONATHAN SKRMETTI
Attorney General and Reporter
of the State of Tennessee
ANDRÉE S. BLUMSTEIN
Solicitor General
/s/ Clark Lassiter Hildabrand

CLARK LASSITER HILDABRAND
Assistant Solicitor General
STEVEN J. GRIFFIN
Assistant Attorney General
P.O. Box 20207

Nashville, TN 37202
(615) 253-5642
Clark.Hildabrand@ag.tn.gov
Counsel for all Plaintiffs-Appellees

other than the State of Arizona
January 24, 2023
57
STEVE MARSHALL CHRISTOPHER M. CARR

Attorney General of Alabama Attorney General of Georgia
KATHERINE G. ROBERTSON STEPHEN J. PETRANY
Chief Counsel Solicitor General
A. BARRETT BOWDRE Office of the Georgia Attorney General
Deputy Solicitor General 40 Capitol Square, S.W.
State of Alabama Atlanta, GA 30334
Office of the Attorney General (404) 458-3408
501 Washington Ave. spetrany@law.ga.gov
Montgomery, AL 36130 Counsel for State of Georgia
(334) 242-7300
Barrett.Bowdre@AlabamaAG.gov
Counsel for State of Alabama RAÚL R. LABRADOR
Attorney General of Idaho
ALAN W. FOUTZ
TREG R. TAYLOR Deputy Attorney General
Attorney General of Alaska Office of the Idaho Attorney General
CORI M. MILLS P.O. Box 83720
Deputy Attorney General Boise, ID 83720
State of Alaska (208) 334-2400
P.O. Box 110300 alan.foutz@ag.idaho.gov
Juneau, AK 99811 Counsel for State of Idaho
(907) 465-3600
cori.mills@alaska.gov
Counsel for State of Alaska THEODORE E. ROKITA
Attorney General of Indiana
THOMAS M. FISHER
LESLIE RUTLEDGE Solicitor General
Attorney General of Arkansas Office of the Indiana Attorney General
NICHOLAS J. BRONNI IGC-South, Fifth Floor
Solicitor General 302 West Washington St.
Office of the Arkansas Attorney General Indianapolis, IN 46204
323 Center St., Suite 200 (317) 232-6255
Little Rock, AR 72201 Tom.Fisher@atg.in.gov
(501) 682-6307 Counsel for State of Indiana
nicholas.bronni@arkansasag.gov
Counsel for State of Arkansas
58
KRIS KOBACH LYNN FITCH

Attorney General of Kansas Attorney General of Mississippi
KURTIS K. WIARD JUSTIN L. MATHENY
Assistant Solicitor General Deputy Solicitor General
Office of the Kansas Attorney General State of Mississippi
120 S.W. 10th Ave. Office of the Attorney General
Topeka, KS 66612 P.O. Box 220
(785) 296-2215 Jackson, MS 39205
kurtis.wiard@ag.ks.gov (601) 359-3680
Counsel for State of Kansas justin.matheny@ago.ms.gov
Counsel for State of Mississippi
DANIEL CAMERON
Attorney General of Kentucky ANDREW BAILEY
MARC MANLEY Attorney General of Missouri
Assistant Attorney General JOSHUA DIVINE
COURTNEY E. ALBINI Solicitor General
Assistant Solicitor General Office of the Missouri Attorney General
Office of the Kentucky Attorney General P.O. Box 899
700 Capital Ave., Suite 118 Jefferson City, MO 65102
Frankfort, KY 40601 (573) 751-8870
(502) 696-5300 Josh.Divine@ago.mo.gov
Marc.Manley@ky.gov Counsel for the State of Missouri
Counsel for Commonwealth of
Kentucky
AUSTIN KNUDSEN
Attorney General of Montana
JEFF LANDRY CHRISTIAN B. CORRIGAN
Attorney General of Louisiana Solicitor General
ELIZABETH B. MURRILL Office of the Montana Attorney General
Solicitor General 215 North Sanders
J. SCOTT ST. JOHN P.O. Box 201401
Deputy Solicitor General Helena, MT 59620
Louisiana Department of Justice (406) 444-2707
1885 N. Third St. Christian.Corrigan@mt.gov
Baton Rouge, LA 70804 Counsel for State of Montana
(225) 326-6766
emurrill@ag.louisiana.gov
stjohnj@ag.louisiana.gov
Counsel for State of Louisiana
59
MIKE HILGERS ALAN WILSON

Attorney General of Nebraska Attorney General of South Carolina
JAMES A. CAMPBELL J. EMORY SMITH, JR.
Solicitor General Deputy Solicitor General
Office of the Nebraska Attorney General Office of the South Carolina Attorney
2115 State Capitol General
Lincoln, NE 68509 P.O. Box 11549
(402) 471-2682 Columbia, SC 29211
jim.campbell@nebraska.gov (803) 734-3680
Counsel for State of Nebraska esmith@scag.gov
Counsel for State of South Carolina
DAVE YOST
Attorney General of Ohio MARTY J. JACKLEY
BENJAMIN M. FLOWERS Attorney General of South Dakota
Solicitor General Office of the South Dakota Attorney
Office of the Ohio Attorney General General
30 E. Broad St., 17th Floor PAUL SWEDLUND
Columbus, OH 43215 Assistant Attorney General
(614) 446-8980 1302 East Highway 14, Suite 1
bflowers@OhioAGO.gov Pierre, SD 57501
Counsel for State of Ohio (605) 773-3215
paul.swedlund@state.sd.us
Counsel for State of South Dakota
GENTER F. DRUMMOND
Attorney General of Oklahoma
ZACH WEST PATRICK MORRISEY
Director of Special Litigation Attorney General of West Virginia
Office of the Attorney General LINDSAY S. SEE
State of Oklahoma Solicitor General
313 N.E. 21st St. Office of the West Virginia Attorney
Oklahoma City, OK 73105 General
(405) 522-4798 State Capitol Bldg. 1, Room E-26
Zach.West@oag.ok.gov Charleston, WV 25305
Counsel for State of Oklahoma (681) 313-4550
lindsay.s.see@wvago.gov
Counsel for State of West Virginia
60
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because it contains 13,000 words, excluding the parts exempted
by Fed. R. App. P. 32(f).
This brief also complies with the typeface and type style requirements of Fed.
R. App. P. 32(a)(5)-(6) because it has been prepared in proportionally spaced
typeface using Times New Roman 14-point font.

January 24, 2023

CERTIFICATE OF SERVICE
I, Clark Hildabrand, counsel for Plaintiffs-Appellees other than the State of
Arizona and a member of the Bar of this Court, certify that, on January 24, 2023, a
copy of the Brief of All Plaintiffs-Appellees Other Than State of Arizona was filed
electronically through the appellate CM/ECF system. I further certify that all parties
required to be served have been served.

ADDENDUM
Page
Designation of Court Documents.......................................................................... A-2
Statutory and Regulatory Provisions .................................................................... A-4
Order in Texas v. EEOC, 2:21-cv-194-Z (N.D. Tex. May 26, 2022) ................. A-29
A-1
DESIGNATION OF COURT DOCUMENTS
State of Tennessee, et al. v. Department of Education, et al.,

No. 3:21-cv-00308 (E.D. Tenn.)
Docket Description Page ID #

Entry
No.
1 Complaint 1-38
1-2 Complaint Exhibit A (“Interpretation”) 41-45
1-3 Complaint Exhibit B (“DOJ Memorandum”) 46-68
1-4 Complaint Exhibit C (“Fact Sheet”) 69-74
1-5 Complaint Exhibit D (“Technical Assistance 75-86
Document”)
10 Plaintiffs’ Motion for Preliminary Injunction 120-126
11 Memorandum in Support of Plaintiffs’ Motion for 127-164
Preliminary Injunction
11-1 Preliminary Injunction Exhibit A, Declaration of 165-167
Howard H. Eley
11-2 Preliminary Injunction Exhibit B, Declaration of 168-170
Emily House
11-3 Preliminary Injunction Exhibit C, Declaration of Eve 171-173
Carney
11-4 Preliminary Injunction Exhibit D, Declaration of Josh 174-176
Mason
11-5 Preliminary Injunction Exhibit E, Declaration of 177-179
Stephen C. Raymer
48 Defendants’ Opposition to Plaintiffs’ Motion for 288-339
Preliminary Injunction
57 Reply in Support of Plaintiffs’ Motion for Preliminary 566-604
Injunction
79 Plaintiffs’ Response to Notice of Supplemental 1162-1168
Authority
82-1 Notice of Supplemental Authority Attachment A, 1187-1215
Order in Texas v. EEOC, 2:21-cv-194-Z (N.D. Tex.
May 26, 2022)
83 Plaintiffs’ Notice of Supplemental Authority 1226-1233
86 Memorandum Opinion and Order 1942-1988
A-2
93 Defendants’ Answer to Plaintiffs’ Complaint 2019-2051

100 Notice of Appeal 2407-2408
111 Order Denying Defendants’ Motion to Strike 2546-2551
Intervenor Complaint and Granting Unopposed
Motion to Stay Further District Court Proceedings
A-3
STATUTORY AND REGULATORY PROVISIONS
Title VII
42 U.S.C. § 2000e-2
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment

in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin.
***
Title IX
20 U.S.C. § 1681
(a) Prohibition against discrimination; exceptions
No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance, except that:
(1) Classes of educational institutions subject to prohibition in regard to

admissions to educational institutions
This section shall apply only to institutions of vocational education,

professional education, and graduate higher education, and to public institutions of
undergraduate higher education;
A-4
(2) Educational institutions commencing planned change in admissions in

regard to admissions to educational institutions
This section shall not apply (A) for one year from June 23, 1972, nor for six
years after June 23, 1972, in the case of an educational institution which has begun
the process of changing from being an institution which admits only students of one
sex to being an institution which admits students of both sexes, but only if it is
carrying out a plan for such a change which is approved by the Secretary of
Education or (B) for seven years from the date an educational institution begins the
process of changing from being an institution which admits only students of only
one sex to being an institution which admits students of both sexes, but only if it is
carrying out a plan for such a change which is approved by the Secretary of
Education, whichever is the later;
(3) Educational institutions of religious organizations with contrary religious

tenets
This section shall not apply to an educational institution which is controlled

by a religious organization if the application of this subsection would not be
consistent with the religious tenets of such organization;
(4) Educational institutions training individuals for military services or

merchant marine
This section shall not apply to an educational institution whose primary

purpose is the training of individuals for the military services of the United States,
or the merchant marine;
(5) Public educational institutions with traditional and continuing admissions

policy in regard to admissions
This section shall not apply to any public institution of undergraduate higher
education which is an institution that traditionally and continually from its
establishment has had a policy of admitting only students of one sex;
(6) Social fraternities or sororities; voluntary youth service organizations
This section shall not apply to membership practices—
A-5
(A) of a social fraternity or social sorority which is exempt from

taxation under section 501(a) of Title 26, the active membership of which consists
primarily of students in attendance at an institution of higher education, or
(B) of the Young Men’s Christian Association, Young Women's

Christian Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary
youth service organizations which are so exempt, the membership of which has
traditionally been limited to persons of one sex and principally to persons of less
than nineteen years of age;
(7) Boy or Girl conferences this section shall not apply to—
(A) any program or activity of the American Legion undertaken in

connection with the organization or operation of any Boys State conference, Boys
Nation conference, Girls State conference, or Girls Nation conference; or
(B) any program or activity of any secondary school or educational

institution specifically for—
(i) the promotion of any Boys State conference, Boys Nation

conference, Girls State conference, or Girls Nation conference; or
(ii) the selection of students to attend any such conference;
(8) Father-son or mother-daughter activities at educational institutions
This section shall not preclude father-son or mother-daughter activities at an

educational institution, but if such activities are provided for students of one sex,
opportunities for reasonably comparable activities shall be provided for students of
the other sex; and
(9) Institution of higher education scholarship awards in “beauty” pageants
This section shall not apply with respect to any scholarship or other financial
assistance awarded by an institution of higher education to any individual because
such individual has received such award in any pageant in which the attainment of
such award is based upon a combination of factors related to the personal
appearance, poise, and talent of such individual and in which participation is limited
to individuals of one sex only, so long as such pageant is in compliance with other
nondiscrimination provisions of Federal law.
A-6
***
20 U.S.C. § 1682
Each Federal department and agency which is empowered to extend Federal

financial assistance to any education program or activity, by way of grant, loan, or
contract other than a contract of insurance or guaranty, is authorized and directed to
effectuate the provisions of section 1681 of this title with respect to such program or
activity by issuing rules, regulations, or orders of general applicability which shall
be consistent with achievement of the objectives of the statute authorizing the
financial assistance in connection with which the action is taken. No such rule,
regulation, or order shall become effective unless and until approved by the
President. Compliance with any requirement adopted pursuant to this section may
be effected (1) by the termination of or refusal to grant or to continue assistance
under such program or activity to any recipient as to whom there has been an express
finding on the record, after opportunity for hearing, of a failure to comply with such
requirement, but such termination or refusal shall be limited to the particular political
entity, or part thereof, or other recipient as to whom such a finding has been made,
and shall be limited in its effect to the particular program, or part thereof, in which
such noncompliance has been so found, or (2) by any other means authorized by
law: Provided, however, That no such action shall be taken until the department or
agency concerned has advised the appropriate person or persons of the failure to
comply with the requirement and has determined that compliance cannot be secured
by voluntary means. In the case of any action terminating, or refusing to grant or
continue, assistance because of failure to comply with a requirement imposed
pursuant to this section, the head of the Federal department or agency shall file with
the committees of the House and Senate having legislative jurisdiction over the
program or activity involved a full written report of the circumstances and the
grounds for such action. No such action shall become effective until thirty days have
elapsed after the filing of such report.
20 U.S.C. § 1683
Any department or agency action taken pursuant to section 1682 of this title shall be
subject to such judicial review as may otherwise be provided by law for similar
action taken by such department or agency on other grounds. In the case of action,
not otherwise subject to judicial review, terminating or refusing to grant or to
continue financial assistance upon a finding of failure to comply with any
requirement imposed pursuant to section 1682 of this title, any person aggrieved
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(including any State or political subdivision thereof and any agency of either) may
obtain judicial review of such action in accordance with chapter 7 of Title 5, and
such action shall not be deemed committed to unreviewable agency discretion within
the meaning of section 701 of that title.
20 U.S.C. § 1686
Notwithstanding anything to the contrary contained in this chapter, nothing

contained herein shall be construed to prohibit any educational institution receiving
funds under this Act, from maintaining separate living facilities for the different
sexes.
Education Regulations
34 C.F.R. § 106.33
A recipient may provide separate toilet, locker room, and shower facilities on the
basis of sex, but such facilities provided for students of one sex shall be comparable
to such facilities provided for students of the other sex.
34 C.F.R. § 106.37
(c) Athletic scholarships.
(1) To the extent that a recipient awards athletic scholarships or grants-in-aid,

it must provide reasonable opportunities for such awards for members of each sex
in proportion to the number of students of each sex participating in interscholastic
or intercollegiate athletics.
(2) Separate athletic scholarships or grants-in-aid for members of each sex

may be provided as part of separate athletic teams for members of each sex to the
extent consistent with this paragraph and § 106.41.
34 C.F.R. § 106.41
(a) General. No person shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, be treated differently from another person or otherwise be
discriminated against in any interscholastic, intercollegiate, club or intramural
athletics offered by a recipient, and no recipient shall provide any such athletics
separately on such basis.
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(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this

section, a recipient may operate or sponsor separate teams for members of each sex
where selection for such teams is based upon competitive skill or the activity
involved is a contact sport. However, where a recipient operates or sponsors a team
in a particular sport for members of one sex but operates or sponsors no such team
for members of the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to try-out for
the team offered unless the sport involved is a contact sport. For the purposes of this
part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball
and other sports the purpose or major activity of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors interscholastic,

intercollegiate, club or intramural athletics shall provide equal athletic opportunity
for members of both sexes. …
***
Administrative Procedure Act
5 U.S.C. § 553
(b) General notice of proposed rule making shall be published in the Federal
Register, unless persons subject thereto are named and either personally served or
otherwise have actual notice thereof in accordance with law. The notice shall
include—
(1) a statement of the time, place, and nature of public rule making
proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the
subjects and issues involved.
Except when notice or hearing is required by statute, this subsection does not
apply—
(A) to interpretative rules, general statements of policy, or rules of agency

organization, procedure, or practice; or
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(B) when the agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefor in the rules issued) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an
opportunity to participate in the rule making through submission of written data,
views, or arguments with or without opportunity for oral presentation. After
consideration of the relevant matter presented, the agency shall incorporate in the
rules adopted a concise general statement of their basis and purpose.
***
5 U.S.C. § 704
Agency action made reviewable by statute and final agency action for which there
is no other adequate remedy in a court are subject to judicial review. A preliminary,
procedural, or intermediate agency action or ruling not directly reviewable is subject
to review on the review of the final agency action. Except as otherwise expressly
required by statute, agency action otherwise final is final for the purposes of this
section whether or not there has been presented or determined an application for a
declaratory order, for any form of reconsideration, or, unless the agency otherwise
requires by rule and provides that the action meanwhile is inoperative, for an appeal
to superior agency authority.
5 U.S.C. § 706
To the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory provisions,
and determine the meaning or applicability of the terms of an agency action. The
reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found
to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;
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(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short

of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections

556 and 557 of this title or otherwise reviewed on the record of an agency hearing
provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or
those parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error.
State Statutes and Constitutional Provisions
Tenn. Code Ann. § 49-2-802 (cited in Complaint ¶ 98, R. 1, PageID#18-19, as

“2021, Tenn. Pub. Acts, c. 452”)
As used in this part:
***
(4) “Sex” means a person’s immutable biological sex as determined by anatomy and
genetics existing at the time of birth. Evidence of a person’s biological sex includes,
but is not limited to, a government-issued identification document that accurately
reflects a person’s sex listed on the person's original birth certificate.
***
Tenn. Code Ann. § 49-2-805 (cited in Complaint ¶ 98, R. 1, PageID#18-19, as

“2021, Tenn. Pub. Acts, c. 452”)
(a) A student, teacher, or employee of the public school, or the student's parent or
legal guardian if the student is under eighteen (18) years of age, has a private right
of action against the LEA or public school, if:
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(1)
(A) The student, teacher, or employee encounters a member of the opposite

sex in a multi-occupancy restroom or changing facility located in a public school
building;
(B) The student, teacher, or employee is in a multi-occupancy restroom or

changing facility designated for the student's, teacher's, or employee's sex at the time
of the encounter; and
(C) The LEA or public school intentionally allowed a member of the opposite
sex to enter the multi-occupancy restroom or changing facility while other persons
were present; or
(2) The student, teacher, or employee is required by the public school to share
sleeping quarters with a member of the opposite sex, unless the member of the
opposite sex is a family member of the student, teacher, or employee.
(b) A student, teacher, or employee, or a student's parent or legal guardian, as

applicable, claiming a right of action pursuant to this section may bring suit in the
chancery court in the county where the claim arose.
(c) A student, teacher, or employee, or a student's parent or legal guardian, as

applicable, aggrieved under this section who prevails in court may recover monetary
damages, including, but not limited to, monetary damages for all psychological,
emotional, and physical harm suffered. An individual who prevails on a claim
brought pursuant to this section is entitled to recover reasonable attorney fees and
costs.
***
Tenn. Code Ann. § 49-6-310 (cited in Complaint ¶ 98, R. 1, PageID#18, as “2021

Tenn. Pub. Acts, c. 40 § 1”)
(a) A student’s gender for purposes of participation in a public middle school or high
school interscholastic athletic activity or event must be determined by the student's
sex at the time of the student's birth, as indicated on the student's original birth
certificate. …
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***
Tenn. Code Ann. § 49-6-2904
(b) Subject to subsection (a), a student shall be permitted to voluntarily:
***
(2) Express religious viewpoints in a public school to the same extent and
under the same circumstances as a student is permitted to express viewpoints on
nonreligious topics or subjects in the school;
(3) Speak to and attempt to share religious viewpoints with other students in
a public school to the same extent and under the same circumstances as a student is
permitted to speak to and attempt to share nonreligious viewpoints with other
students;
***
(a)
(1) Intercollegiate or intramural athletic teams or sports that are designated for
“females,” “women,” or “girls” and that are sponsored, sanctioned, or operated by a
public institution of higher education or by a private institution of higher education
whose students or teams compete against public institutions of higher education shall
not be open to students of the male sex.
(2) Subdivision (a)(1) does not restrict the eligibility of a student to participate
in an intercollegiate or intramural athletic team or sport designated for “males,”
“men,” or “boys” or designated as “coed” or “mixed.”
(b) For purposes of this section, an institution of higher education shall rely upon the
sex listed on the student's original birth certificate, if the birth certificate was issued
at or near the time of birth. If a birth certificate provided by a student is not the
student's original birth certificate issued at or near the time of birth or does not
indicate the student's sex, then the student must provide other evidence indicating
the student's sex.
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***
(a) The governing body of every institution shall adopt a policy that affirms the
following principles of free speech, which are the public policy of this state:
***
(2) An institution shall be committed to giving students the broadest possible

latitude to speak, write, listen, challenge, learn, and discuss any issue, subject to §
49-7-2408;
***
(10) Although faculty are free in the classroom to discuss subjects within areas
of their competence, faculty shall be cautious in expressing personal views in the
classroom and shall be careful not to introduce controversial matters that have no
relationship to the subject taught, and especially matters in which they have no
special competence or training and in which, therefore, faculty's views cannot claim
the authority accorded statements they make about subjects within areas of their
competence; provided, that no faculty will face adverse employment action for
classroom speech, unless it is not reasonably germane to the subject matter of the
class as broadly construed, and comprises a substantial portion of classroom
instruction;
***
Ala. Code § 16-1-52
(a) The Legislature finds and declares the following:
(1) Physical differences between biological males and biological females have
long made separate and sex-specific sports teams important so that female athletes
can have equal opportunities to compete in sports.
(2) Physical advantages for biological males relevant to sports include, on

average, a larger body size with more skeletal muscle mass, a lower percentage of
body fat, and greater maximal delivery of anaerobic and aerobic energy than
biological females.
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(3) Even at young ages, biological males typically score higher than biological
females on cardiovascular endurance, muscular strength, muscular endurance, and
speed and agility. These differences become more pronounced during and after
puberty as biological males produce higher levels of testosterone. On average,
biological male athletes are bigger, faster, stronger, and more physically powerful
than their biological female counterparts. This results in a significant sports
performance gap between the sexes.
(4) Studies have shown that the benefits that natural testosterone provides to
biological male athletes is not significantly diminished through the use of
testosterone suppression. Testosterone suppression in biological males does not
result in a level playing field between biological male and biological female athletes.
(5) Because of the physical differences between biological males and

biological females, having separate athletic teams based on the athletes' biological
sex reduces the chance of injury to biological female athletes and promotes sex
equality. It provides opportunities for biological female athletes to compete against
their peers rather than against biological male athletes, and allows biological female
athletes to compete on a fair playing field for scholarships and other athletic
accomplishments.
(b)
(1) Except as provided in subsection (c), a public K-12 school may not
participate in, sponsor, or provide coaching staff for interscholastic athletic events
within this state that are either scheduled by or conducted under the authority of any
athletic association of the state that permits or allows participation in athletic events
within the state conducted exclusively for males by any individual who is not a
biological male or participation in athletic events within the state conducted
exclusively for females by any individual who is not a biological female.
(2) A public K-12 school may not allow a biological female to participate on
a male team if there is a female team in a sport. A public K-12 school may not allow
a biological male to participate on a female team.
(c) This section does not apply to athletic events at which both biological males and
biological females are permitted or allowed to participate.
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Alaska Stat. § 14.18.040
(a) Equal opportunity for both sexes in athletics and in recreation shall be provided
in a manner that is commensurate with the general interests of the members of each
sex. Separate school-sponsored teams may be provided for each sex. A school that
sponsors separate teams in a particular sport shall provide equipment and supplies,
services, and opportunities, including use of courts, gymnasiums, and pools, to both
teams with no disparities based on sex. A school that provides showers, toilets, or
training-room facilities for athletic or recreational purposes shall provide
comparable facilities for both sexes, either through the use of separate facilities or
by scheduling separate use by each sex.
***
Ark. Code Ann. § 6-1-107
(c) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that

are sponsored by a school shall be expressly designated as one (1) of the following
based on biological sex:
(1) “Male”, “men's”, or “boys”;
(2)
(A) “Female”, “women's”, or “girls”.
(B) An interscholastic, intercollegiate, intramural, or club athletic team

or sport that is expressly designated for females, women, or girls shall not be open
to students of the male sex; or
(3) “Coed” or “mixed”.
***
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Ark. Code Ann. § 16-130-103 (cited in Complaint ¶ 99, R. 1, PageID#19, as

“Gender Integrity Reinforcement Legislation for Sports (GIRLS) Act, 2021
Ark. Act 953 (Apr. 29, 2021)”)
As used in this chapter:
***
(2) “Sex” means a person's immutable biological sex as objectively determined by

anatomy and genetics existing at the time of birth.
Ark. Code Ann. § 16-130-104 (cited in Complaint ¶ 99, R. 1, PageID#19, as

“Gender Integrity Reinforcement Legislation for Sports (GIRLS) Act, 2021
Ark. Act 953 (Apr. 29, 2021)”)
(a) Any interscholastic, intercollegiate, intramural, or club athletic teams or sports

that are sponsored by a covered entity shall be expressly designated for one (1) of
the following groups based on sex:
(1) Males, men, or boys;
(2) Females, women, or girls; or
(3) Coed or mixed.
(b) Members of the male sex are prohibited from an interscholastic, intercollegiate,
intramural, or club athletic team or sport that is expressly designated for females,
women, or girls.
Ariz. Rev. Stat. Ann. § 15-120.02
A. Each interscholastic or intramural athletic team or sport that is sponsored by a

public school or a private school whose students or teams compete against a public
school shall be expressly designated as one of the following based on the biological
sex of the students who participate on the team or in the sport:
1. “Males”, “men” or “boys”.
2. “Females”, “women” or “girls”.
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3. “Coed” or “mixed”.
B. Athletic teams or sports designated for “females”, “women” or “girls” may not
be open to students of the male sex.
***
Ga. Code Ann. § 20-2-316
(c)
(1) No high school which receives funding under this article shall participate
in, sponsor, or provide coaching staff for interscholastic sports events which are
conducted under the authority of, conducted under the rules of, or scheduled by any
athletic association unless the athletic association complies with the provisions of
this subsection by having a charter, bylaws, and other governing documents which
provide for governance and operational oversight by an executive oversight
committee as follows:
***
(E) The authority and duties of the executive oversight committee shall
include:
***
(v) If the athletic association determines that it is necessary and

appropriate to prohibit students whose gender is male from participating in athletic
events that are designated for students whose gender is female, then the athletic
association may adopt a policy to that effect; provided, however, that such policy
shall be applied to all of the athletic association's participating public high schools;
***
Idaho Code Ann. § 33-6203
(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that

are sponsored by a public primary or secondary school, a public institution of higher
education, or any school or institution whose students or teams compete against a
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public school or institution of higher education shall be expressly designated as one

(1) of the following based on biological sex:
(a) Males, men, or boys;
(b) Females, women, or girls; or
(c) Coed or mixed.
(2) Athletic teams or sports designated for females, women, or girls shall not be open
to students of the male sex.
***
Ind. Code Ann. § 20-33-13-4
(a) A school corporation, public school, nonpublic school, or association that

organizes, sanctions, or sponsors an athletic team or sport described in section 1 of
this chapter shall expressly designate the athletic team or sport as one (1) of the
following:
(1) A male, men's, or boys' team or sport.
(2) A female, women's, or girls' team or sport.
(3) A coeducational or mixed team or sport.
(b) A male, based on a student's biological sex at birth in accordance with the
student's genetics and reproductive biology, may not participate on an athletic team
or sport designated under this section as being a female, women's, or girls' athletic
team or sport.
Ky. Rev. Stat. Ann. § 164.2813
(1)
(a) A public postsecondary education institution or private postsecondary

education institution that is a member of a national intercollegiate athletic
association shall designate all intercollegiate and intramural athletic teams,
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activities, sports, and events that are sponsored or authorized by the institution as
one (1) of the following categories:
1. “Men’s”;
2. “Coed”; or
3. “Women’s.”
(b)
1. A public postsecondary education institution or private

postsecondary education institution that is a member of a national intercollegiate
athletic association shall prohibit a member of the male sex from competing in any
intercollegiate or intramural athletic team, activity, sport, or event designated as
“women’s.”
2. Nothing in this section shall be construed to restrict the eligibility of

any student to participate in an athletic activity or sport designated as “men’s” or
“coed.”
(2) The sex of a student for the purpose of determining eligibility to participate in an
athletic activity or sport or to use an athletic facility designated for the exclusive use
of a single sex shall be determined by:
(a) A student's biological sex as indicated on the student's original, unedited

birth certificate issued at the time of birth; or
(b) An affidavit signed and sworn to by a physician, physician assistant,

advanced practice registered nurse, or chiropractor under penalty of perjury
establishing the student's biological sex at the time of birth.
***
La. Stat. Ann. § 4:444
A. Each intercollegiate or interscholastic athletic team or sporting event that is

sponsored by a school and that receives state funding shall be expressly designated,
based upon biological sex, as only one of the following:
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(1) Except as provided in Subsection C of this Section, a male, boys, or mens

team or event shall be for those students who are biological males.
(2) A female, girls, or womens team or event shall be for those students who
are biological females.
(3) A coeducational or mixed team or event shall be open for participation by

biological females and biological males.
B. Athletic teams or sporting events designated for females, girls, or women shall
not be open to students who are not biologically female.
***
Miss. Code. Ann. § 37-97-1
(1) Interscholastic or intramural athletic teams or sports that are sponsored by a

public primary or secondary school or any school that is a member of the Mississippi
High School Activities Association or public institution of higher education or any
higher education institution that is a member of the NCAA, NAIA or NJCCA shall
be expressly designated as one of the following based on biological sex:
(a) “Males,” “men” or “boys”;
(b) “Females,” “women” or “girls”; or
(c) “Coed” or “mixed.”
(2) Athletic teams or sports designated for “females,” “women” or “girls” shall not
Mont. Code Ann. § 20-7-1306 (cited in Complaint ¶ 99, R. 1, PageID#19, as

“Save Women’s Sports Act, 2021 Mont. Laws, ch. 405”)
(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that

are sponsored by a public elementary or high school, a public institution of higher
education, or any school or institution whose students or teams compete against a
public school or institution of higher education must be expressly designated as one
of the following based on biological sex:
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(a) males, men, or boys;
(b) females, women, or girls; or
(c) coed or mixed.
(2) Athletic teams or sports designated for females, women, or girls may not be open
to students of the male sex.
Neb. Rev. Stat. § 79-2,124
The Nebraska Equal Opportunity in Education Act does not prohibit any educational
institution from maintaining separate toilet facilities, locker rooms, or living
facilities for the different sexes.
51 Okla. Stat. § 253
B. No governmental entity shall substantially burden a person's free exercise of

religion unless it demonstrates that application of the burden to the person is:
1. Essential to further a compelling governmental interest; and
2. The least restrictive means of furthering that compelling governmental

interest.
***
70 Okla. Stat. § 1-125
A. As used in this section:
1. “Sex” means the physical condition of being male or female based on

genetics and physiology, as identified on the individual's original birth certificate;
***
B. To ensure privacy and safety, each public school and public charter school that
serves students in prekindergarten through twelfth grades in this state shall require
every multiple occupancy restroom or changing area designated as follows:
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1. For the exclusive use of the male sex; or
2. For the exclusive use of the female sex.
***
70 Okla. Stat. § 27-106
C. Athletic teams that are sponsored by a school or sponsored by a private school

whose students or teams compete against a school shall be expressly designated as
one of the following based on biological sex:
1. “Males”, “men” or “boys”;
2. “Females”, “women” or “girls”; or
3. “Coed” or “mixed”.
***
70 Okla. Stat. § 2119.2
B. A public institution of higher education may substantially burden a student's

exercise of religion only if that institution demonstrates that application of the
burden to the student:
1. Is in furtherance of a compelling interest of the public institution of higher

education;
2. Actually furthers that interest; and
3. Is the least restrictive means of furthering that interest.
***
70 Okla. Stat. § 2120
B. Expressive activities protected under the provisions of this section include but are
not limited to any lawful verbal, written, audio-visual or electronic means by which
individuals may communicate ideas to one another, including all forms of peaceful
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assembly, protests, speeches and guest speakers, distribution of literature, carrying

signs and circulating petitions.
C.
1. The outdoor areas of campuses of public institutions of higher education in

this state shall be deemed public forums for the campus community, and public
institutions of higher education shall not create “free speech zones” or other
designated areas of campus outside of which expressive activities are prohibited.
Public institutions of higher education may maintain and enforce reasonable time,
place and manner restrictions narrowly tailored in service of a significant
institutional interest only when such restrictions employ clear, published, content-
and viewpoint-neutral criteria and provide for ample alternative means of
expression. Any such restrictions shall allow for members of the campus community
to spontaneously and contemporaneously assemble and distribute literature.
2. Nothing in this subsection shall be interpreted as limiting the right of

student expression elsewhere on campus.
D.
1. Any person who wishes to engage in noncommercial expressive activity on

campus shall be permitted to do so freely, as long as the person's conduct is not
unlawful and does not materially and substantially disrupt the functioning of the
public institutions of higher education, subject only to the requirements of subsection
C of this section.
2. Nothing in this subsection shall prohibit public institutions of higher

education from maintaining and enforcing reasonable time, place and manner
restrictions that are narrowly tailored to serve a significant institutional interest only
when such restrictions employ clear, published, content- and viewpoint-neutral
criteria. Any such restrictions shall allow for members of the campus community to
spontaneously and contemporaneously assemble, speak and distribute literature.
3. Nothing in this subsection shall be interpreted as preventing public

institutions of higher education from prohibiting, limiting or restricting expression
that the First Amendment does not protect or prohibiting harassment as defined by
this section.
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4. Nothing in this section shall enable individuals to engage in conduct that

intentionally, materially and substantially disrupts another person's expressive
activity if that activity is occurring in a campus space reserved for that activity under
the exclusive use or control of a particular group.
***
Okla. Admin. Code § 335:15-3-2(b)(5)
(b) Effect of sex-preference employer policies and practices.
***
(5) Oklahoma Law may require that separate restroom facilities be provided
employees of each sex. An employer will be deemed to have engaged in an unlawful
employment practice if it refuses to hire or otherwise adversely affects the
employment opportunities of applicants or employees in order to avoid the provision
of such restrooms for persons of that sex.
S.C. Code Ann. § 59-1-500
(B)
(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports

that are sponsored by a public elementary or secondary school or public
postsecondary institution must be expressly designated as one of the following based
on the biological sex at birth of team members:
(a) males, men, or boys;
(b) females, women, or girls; or
(c) coed or mixed, including both males and females.
(2) Athletic teams or sports designated for males, men, or boys shall not be
open to students of the female sex, unless no team designated for females in that
sport is offered at the school in which the student is enrolled.
(3) Athletic teams or sports designated for females, women, or girls shall not
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(4) A private school or a private institution sponsoring an athletic team or

sport in which its students or teams compete against a public school or institution
must also comply with this section for the applicable team or sport.
***
S.D. Codified Laws § 13-67-1
Any interscholastic, intercollegiate, intramural, or club athletic team, sport, or

athletic event that is sponsored or sanctioned by an accredited school, school district,
an activities association or organization, or an institution of higher education under
the control of either the Board of Regents or the Board of Technical Education must
be designated as one of the following, based on the biological sex at birth of the
participating students:
(1) Females, women, or girls;
(2) Males, men, or boys; or
(3) Coeducational or mixed.
Only female students, based on their biological sex, may participate in any team,
sport, or athletic event designated as being for females, women, or girls.
For purposes of this section, biological sex is either female or male and the sex listed
on the student's official birth certificate may be relied upon if the certificate was
issued at or near the time of the student's birth. The failure to comply with this section
is a limited waiver of sovereign immunity for relief authorized under this chapter.
W. Va. Code Ann. § 18-2-25d
(b) Definitions. -- As used in this section, the following words have the meanings
ascribed to them unless the context clearly implies a different meaning:
(1) “Biological sex” means an individual's physical form as a male or female

based solely on the individual's reproductive biology and genetics at birth.
(2) “Female” means an individual whose biological sex determined at birth is

female. As used in this section, “women” or “girls” refers to biological females.
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(3) “Male” means an individual whose biological sex determined at birth is

male. As used in this section, “men” or “boys” refers to biological males.
(c) Designation of Athletic Teams. --
(1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports

that are sponsored by any public secondary school or a state institution of higher
education, including a state institution that is a member of the National Collegiate
Athletic Association (NCAA), National Association of Intercollegiate Athletics
(NAIA), or National Junior College Athletic Association (NJCAA), shall be
expressly designated as one of the following based on biological sex:
(A) Males, men, or boys;
(B) Females, women, or girls; or
(C) Coed or mixed.
(2) Athletic teams or sports designated for females, women, or girls shall not
be open to students of the male sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport.
***
W. Va. Code Ann. § 18B-20-2
Expressive activities protected under the provisions of § 18-1-1 et seq. of this code
include, but are not limited to, any lawful verbal and nonverbal speech. This may
include lawful and protected forms of peaceful assembly, protests, speeches and
guest speakers, distribution of literature, carrying signs, and circulating petitions.
W. Va. Code Ann. § 21-3-12
Every factory, mercantile establishment, mill or workshop shall be provided with a

sufficient number of water closets, and whenever both male and female persons are
employed, separate water closets shall be provided for the use of each sex, and
plainly marked by which sex they are to be used. No person or persons shall be
allowed to use the closets assigned to the opposite sex.
A-27
***
W. Va. Code Ann. § 21-3-13
In all factories, mercantile establishments, mills or workshops, adequate washing

facilities shall be provided for the employees, where necessary. When the labor
performed by the employees is of such a character as to make customary or necessary
a change of clothing by the employees, there shall be provided a sanitary and suitable
dressing room or rooms. Separate dressing rooms and washing facilities shall be
maintained for each sex.
W. Va. Const. art. 3, § 15
No man shall be compelled to frequent or support any religious worship, place or

ministry whatsoever; nor shall any man be enforced, restrained, molested or
burthened, in his body or goods, or otherwise suffer, on account of his religious
opinions or belief, but all men shall be free to profess and, by argument, to maintain
their opinions in matters of religion; and the same shall, in nowise, affect, diminish
or enlarge their civil capacities; and the Legislature shall not prescribe any religious
test whatever, or confer any peculiar privileges or advantages on any sect or
denomination, or pass any law requiring or authorizing any religious society, or the
people of any district within this State, to levy on themselves, or others, any tax for
the erection or repair of any house for public worship, or for the support of any
church or ministry, but it shall be left free for every person to select his religious
instructor, and to make for his support such private contracts as he shall please.
A-28
ORDER IN TEXAS V. EEOC, 2:21-CV-194-Z (N.D. TEX. MAY 26, 2022)
A copy of this decision is filed pursuant to Fed. R. App. P. 32.1(b);
6 Cir. R. 32.1(a). Plaintiffs provided the decision to the district court at Not. of
Supplemental Auth. Attachment A, R. 82-1, PageID#1187-1215.
A-29
Case 2:21-cv-00194-Z Document 53 Filed 05/26/22 Page 1 of 29 PageID 603
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
STATE OF TEXAS, §
§
Plaintiff, §
§
v. § 2:21-CV-194-Z
§
EQUAL EMPLOYMENT OPPORTUNITY §
COMMISSION, et al., §
§
Defendants. §
ORDER
Before the Court is Defendants’ 1 Motion to Dismiss for Lack of Jurisdiction (ECF No. 12)
and Supplemental Motion to Dismiss the First Amended Complaint (collectively “Motions”) (ECF
No. 37). Having considered the Motions and relevant law, the Court GRANTS IN PART and
DENIES IN PART the Motions. The Court DISMISSES Count XI of the Amended Complaint.
BACKGROUND
A. Bostock and Federal Guidance
On June 15, 2020, the Supreme Court held Title VII’s “because of . . . sex” terminology
should be read to prohibit “sexual orientation” and “gender identity” discrimination. See generally
Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Exactly one year later, Charlotte Burrows,
Chairman of the EEOC issued a “technical assistance document” (“June 15 Guidance”)
purportedly explaining “what the Bostock decision means for LGBTQ+ workers (and all covered
1
Defendants are the Equal Employment Opportunity Commission (“EEOC”), Charlotte A. Burrows, in her official
capacity as Chairman of the EEOC, Merrick B. Garland, in his official capacity as Attorney General of the United
States, the United States Department of Health and Human Services (“HHS”), Xavier Becerra, in his official capacity
as Secretary of HHS, and Lisa J. Pino, in her official capacity as Director of HHS’s Office for Civil Rights. The Court
will refer to all these parties collectively as “Defendants.”
1
workers) and for employers across the country” and “explain[ed] the [EEOC’s] established legal
positions on LGTBQ+ related matters, as voted by the Commission.” ECF No. 31-1 at 4.
On March 2, 2022, HHS’s Office of Civil Rights issued a similar “Notice and Guidance”
(“March 2 Guidance”). Id. at 14. The March 2 Guidance interprets Section 1557 of the Affordable
Care Act, Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities
Act to prohibit federally funded entities from “restricting an individual’s ability to receive
medically necessary care, including gender-affirming care, from their health care provider solely
on the basis of their sex assigned at birth or gender identity” and from “prevent[ing] otherwise
qualified individuals from receiving medically necessary care on the basis of their gender
dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria.” Id. at 15. HHS issued
the March 2 Guidance in direct response to a Texas gubernatorial order. See id. at 18 (“[O]n the
heels of a discriminatory gubernatorial order in Texas, Health and Human Services (HHS)
Secretary Xavier Becerra released the following statement . . . [and] announced several immediate
actions HHS is taking [sic] to support LGBTQI+ youth and further remind Texas and others of the
federal protections that exist.”).
B. Procedural History
On September 20, 2021, Plaintiff State of Texas sued EEOC, Charlotte Burrows, in her
official capacity as Chairman of the EEOC, and Merrick Garland, in his official capacity as
Attorney General of the United States. On March 9, 2022, Plaintiff filed an Amended Complaint
(ECF No. 31), adding HHS, Xavier Becerra, in his official capacity as Secretary of the HHS, and
Lisa Pino, in her official capacity as Director of HHS’s Office for Civil Rights. Plaintiff asks the
Court to declare the June 15 Guidance and the March 2 Guidance (collectively “Guidances”)
unlawful, vacate the Guidances, issue preliminary and permanent injunctive relief enjoining
2
Defendants from enforcing or implementing the June 15 Guidance, issue a temporary restraining
order, preliminary injunction, and permanent injunction prohibiting HHS Defendants from
enforcing or implementing the March 2 Guidance, and award attorney’s fees. In response,
Defendants filed the instant Motions pursuant to Federal Rule of Civil Procedure 12(b)(1) arguing
this Court lacks jurisdiction.
LEGAL STANDARD
A Rule 12(b)(1) motion “allows a party to challenge the subject-matter jurisdiction of the
district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The
plaintiff bears the burden to establish a court’s jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). A federal court must “presume [it] lack[s] jurisdiction unless the contrary appears
affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006)
(internal marks omitted). “Ultimately, a motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support
of [its] claim that would entitle plaintiff to relief.” Ramming, 281 F.3d at 161.
ANALYSIS
Defendants argue five grounds preclude the Court’s subject-matter jurisdiction: (1) the
Guidances do not constitute final agency actions and are thus not subject to judicial review under
the Administrative Procedure Act (“APA”); (2) Plaintiff has an adequate, alternative remedy; (3)
Plaintiff lacks Article III standing to sue Defendants; (4) Plaintiff’s claims are not ripe; and (5)
the narrow ultra vires exception to the APA’s final agency action requirement does not apply. The
Court will evaluate each of these in turn.
3
A. The Guidances Constitute Final Agency Actions
The Court addresses the question of final agency action first because the analysis
“contextualizes the standing inquiry.” Texas v. E.E.O.C. 933 F.3d 433, 441 (5th Cir. 2019). The
APA only permits judicial review of final agency action. 5 U.S.C. § 704. 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 v. Spear, 520 U.S. 154, 178 (1997) (internal marks omitted). “The Supreme Court has long
taken a pragmatic approach to finality, viewing the APA’s finality requirement as flexible.”
E.E.O.C., 933 F.3d at 441 (internal marks omitted).
1. The Guidances mark the consummation of EEOC’s and HHS’s decision-making

processes.
The consummation prong requires the Court to determine “whether an action is properly
attributable to the agency itself and represents the culmination of that agency’s consideration of
the issue,” or “only the ruling of a subordinate official, or tentative.” Soundboard Ass’n v. Fed.
Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (internal marks omitted). Guidance letters
can mark the “consummation” of an agency’s decision-making process. See Her Majesty the
Queen in Right of Ontario v. E.P.A., 912 F.2d 1525, 1532 (D.C. Cir. 1990) (holding EPA’s
guidance letters constituted final agency actions because they “serve[d] to confirm a definitive
position that has a direct and immediate impact on the parties”).
Defendants argue the June 15 Guidance is not the consummation of EEOC’s decision-
making process because it “merely summarizes prior EEOC decision-making and the Bostock
decision — it does not reflect any new decision by the agency.” ECF No. 12 at 25. This argument
ignores the limited reach of Bostock, the limited weight of EEOC’s prior decisions, and the
June 15 Guidance itself.
4
Bostock “did not establish a new or otherwise separate protected class, but instead clarified
the scope of sex classification.” Stolling v. Tex. Tech Univ., No. 5:20-CV-250-H, 2021
WL 3748964, at *10 (N.D. Tex. Aug. 25, 2021); see also Bostock, 140 S. Ct. at 1739 (interpreting
definition of “sex” rather than creating new, independent protected class); Bear Creek Bible
Church v. E.E.O.C., No. 4:18-CV-00824-O, 2021 WL 5449038, at *35 (N.D. Tex. Nov. 22, 2021)
(“Transgender individuals are not a protected class, and the ‘discrimination’ must still link to
biological sex.”). Nor did Bostock broaden the definition of “sex”, and the Supreme Court
explicitly refused to decide whether “sex-segregated bathrooms, locker rooms, and dress codes”
violate Title VII. Bostock, 140 S. Ct. at 1739, 1753. Yet, the June 15 Guidance does not cabin itself
to Bostock’s holding — addressing only discrimination against employees based on their gender
identity — but seeks to mandate accommodations for transgender employees from lawful, sex-
based workplace rules.
Bostock forbids “gender identity” discrimination under the Title VII protected class “sex.”
But this prohibition does not necessarily include conduct associated with “transgenderism.” 2
Specifically, Bostock expressly did not hold that Title VII discrimination “because of . . . sex”
necessarily includes all conduct correlated to the protected class “sex” — or by Bostock’s reading,
“gender identity.” See Bostock, 140 S. Ct. 1731, 1753 (“But none of these other laws are before
us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do
not prejudge any such question today. Under Title VII, too, we do not purport to address
bathrooms, locker rooms, or anything else of the kind.”); see also Garcia v. Gloor, 618 F.2d 264,
2
The Guidances and briefs intermittently use the terms “homosexual,” “bisexual,” and “transgender” to refer to the
categories “sexual orientation” and “gender identity” referenced in Bostock. Though the terminology is potentially
underinclusive, overinclusive, and inaccurate, this Court will refer to “sexual orientation” and “gender identity” as
collective of all aforementioned categories — unless particularity is necessary for the Court’s analysis.
5
268 (5th Cir. 1980) (rejecting attempts to find discrimination based on “language” because it
correlated with “national origin”); Garcia v. Spun Steak Co., 998 F.2d 1480, 1489–90 (9th Cir.
1993) (holding rule mandating only English be spoken in workplace was not “national origin"
discrimination); E.E.O.C. v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1032 (11th Cir. 2016)
(“[E]very court to have considered the issue has rejected the argument that Title VII protects
hairstyles culturally associated with race”). By forcing employers to more favorably accommodate
conduct associated with “gender identity,” the June 15 Guidance exceeds the scope of Title VII
and Bostock.
Defendants argue the June 15 Guidance merely recites “established legal positions,” citing
prior EEOC decisions as examples. ECF No. 12 at 11–13 (citing ECF No. 1-1 at 3–4). But these
decisions are irrelevant because they interpret Title VII provisions applicable to federal employers
— not private-sector and state employers. Compare 42 U.S.C. § 2000e-(2)(a)(1) (declaring it
unlawful for private-sector and state employers to “fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual . . . because of such
individual’s . . . sex” (emphasis added)), with 42 U.S.C. § 2000e-(16)(a) (“All personnel actions
affecting employees or applicants for employment . . . shall be made free from any discrimination
based on . . . sex . . .” (emphasis added)). These differences “hold the Federal Government to a
stricter standard than private employers or state or local government.” Babb v. Wilkie, 140 S. Ct.
1168, 1173–74 (2020) (analyzing ADEA standard with identical wording to Title VII). Given the
difference in language, the Court cannot assume these provisions should be interpreted
synonymously. See Neese v. Becerra, No. 2:21-CV-163-Z, 2022 WL 1265925, at *13 (N.D. Tex.
Apr. 26, 2022).
6
Defendants also rely on a 2016 document titled “Preventing Employment Discrimination
Against Lesbian, Gay, Bisexual, or Transgender Works,” highlighting consent decrees negotiated
with private employers. For Defendants, this 2016 document evinces that the June 15 Guidance is
nothing new. ECF No. 12 at 27. However, “adoption of a consent decree is not an agency act under
the APA.” Home Builders Ass’ns of N. Cal. v. Norton, 293 F. Supp. 2d 1, 5 (D.D.C. 2002). Contrast
the 2016 document, which relies only on federal-sector decisions and cites no judicial authority,
to the June 15 Guidance which asserts “established legal positions” and imposes “existing
requirements under the law,” particularly Bostock. ECF No. 1-1 at 3–4.
Finally, Defendants’ argument that the June 15 Guidance is “merely a summary” ignores
the operation and text of the Guidance itself. Like the assistant administrator’s letter at issue in
Her Majesty the Queen in Right of Ontario — issued under the authority of the EPA and explaining
a legal position — the June 15 Guidance was issued under EEOC’s authority and explicitly claims
its requirements are “established legal positions” and “existing requirements under the law.” ECF
No. 1-1 at 3–4. Evaluating all this under the Supreme Court’s instruction to approach finality
flexibly and pragmatically, the June 15 Guidance “marks the consummation” of EEOC’s decision-
making process.
Likewise, the March 2 Guidance “marks the consummation” of HHS’s decision-making
process. Defendants argue the March 2 Guidance is an interpretive rule or a general policy
statement, “merely provid[ing] potential applications of the law in the abstract.” ECF No. 37 at 28.
Thus, the March 2 Guidance does not constitute HHS’s final determination of any issues. Id. But
this argument suffers the same fate as Defendants’ argument defending the June 15 Guidance as
mere summarization of prior EEOC decisions and the requirements of Bostock. Like the June 15
7
Guidance — which exceeds the requirements of Bostock, Title VII, and prior EEOC decisions —
the March 2 Guidance extends beyond the provisions of Title IX and the limits of Bostock.
The March 2 Guidance “does not simply repeat the relevant provisions” of the statutes and
regulations it relies on. Texas v. E.E.O.C., 827 F.3d 372, 385 (5th Cir. 2016). Instead, the March 2
Guidance “purports to interpret authoritatively” those statutory and regulatory requirements Id.
The March 2 Guidance states: “Section 1557 protects the right of individuals to access the health
programs and activities of recipients of federal financial assistance without facing discrimination
on the basis of sex, which includes discrimination on the basis of gender identity.” ECF No. 31-1
at 15 (emphasis added). Therefore — according to HHS — “[c]ategorically refusing to provide
treatment to an individual based on their gender identity is prohibited discrimination,” and
“federally-funded covered entities restricting an individual’s ability to receive medically necessary
care, including gender-affirming care, from their health care provider solely on the basis of their
sex assigned at birth or gender identity likely violates Section 1557.” Id. (emphasis added).
But Section 1557 does not include the terms “sex” or “gender identity.” 42 U.S.C.
§ 18116(a). Instead, Section 1557 expressly incorporates Title IX, which prohibits discrimination
“on the basis of sex.” See id.; 20 U.S.C. § 1681(a). Based on the ordinary public meaning conveyed
when Congress enacted Title IX and “judicially accepted principles of linguistics in reading the
whole — including compositionality . . . . Title IX appears to operate in binary terms — male and
female — when it references ‘sex.’” Neese, 2022 WL 1265925, at *12.
And not even the outer limits of Bostock justify the March 2 Guidance’s interpretation of
Section 1557. Though Courts generally apply the legal standards used in Title VII cases to
adjudicate similar Title IX cases — see, e.g., Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 404
(5th Cir. 1996) (collecting cases) — Title IX and Section 1557 do not completely mirror Title VII.
8
In Bostock, the plaintiff sued for a violation of Title VII. 140 S. Ct. at 1738; 42 U.S.C. § 2000e-
2(a)(1). Title VII prohibits certain employer decisions “because of” certain factors, including
“sex.” Id. (emphasis added). By contrast, Title IX forbids “discrimination on the basis of sex.” 20
U.S.C. § 1681(a) (emphasis added). The Court cannot read these phrases synonymously.
The Court must give full effect to Congress’s decision to use different phrases. HENRY J.
FRIENDLY, MR. JUSTICE FRANKFURTER AND THE READING OF STATUTES, in BENCHMARKS 224
(1967) (“[W]hen Congress employs the same word, it normally means the same thing, when it
employs different words, it usually means different things”). “After all, only the words on the page
constitute the law adopted by Congress and approved by the President.” Bostock, 140 S. Ct.
at 1738. The Court “would risk amending [the] statutes outside the legislative process reserved for
the people’s representatives” should it ignore the different phrasing in Title VII and Title IX. Id.
Based on Title VII’s “because of” sex language, the Supreme Court used a “but-for” causation
analysis to decide Bostock and hold Title VII prohibits employment discrimination because of
one’s gender identity. See id. at 1739. Because Title IX prohibits discrimination “on the basis of
sex,” no certainty exists that Title IX and Section 1557 similarly prohibit discrimination on the
basis of gender identity. As “neither Title VII, [Title IX], . . . nor Bostock ‘compels or logically
justifies’ the [March 2 Guidance], it is a legislative rule.” ECF No. 42 at 9–10. Legislative rules
are “by definition, final agency action.” E.E.O.C., 933 at 441.
2. Legal consequences flow from the Guidances.
Bennett’s second prong is satisfied when an agency’s guidance document binds it and its
staff to a legal position “produc[ing] legal consequences or determin[ing] rights and obligations.”
Id. Action binding an agency to a legal view “gives rise to direct and appreciable legal
consequences.” U.S. Army Corps of Eng’rs v. Hawkes, 578 U.S. 590, 598 (2016) (internal marks
9
omitted). Courts look for mandatory language to determine “whether an agency’s action binds it
and accordingly gives rise to legal consequences.” E.E.O.C., 933 F.3d at 441.
As illustrated above, the June 15 Guidance imposes new duties and “chang[ed] the text” of
the statute it “profess[ed] to interpret.” POET Biorefining, LLC v. E.P.A., 970 F.3d 392, 407 (D.C.
Cir. 2020). Although the dress-code, bathroom, and pronoun accommodations it imposes are not
required by Bostock or EEOC’s cited federal-sector employment decisions, the Guidance argues
those impositions are “existing requirements under the law.” ECF No. 1-1 at 3. As Plaintiff argues,
these requirements are “legislative rules that impose new duties on employers.” ECF No. 18 at 32.
All legislative rules are, “by definition, final agency action.” E.E.O.C., 933 F.3d at 441.
Defendants argue the June 15 Guidance “exhibits none of the attributes that the Fifth
Circuit found dispositive of final agency action in Texas v. EEOC,” claiming the June 15 Guidance
“does not indicate in any manner how EEOC staff must assess potential sex discrimination on the
basis of sexual orientation or gender identity.” ECF No. 12 at 26. But Defendants “can’t have their
cake and eat it too”: if the June 15 Guidance states existing requirements of law and “established
legal positions,” how could EEOC investigators and staff not consider them binding?
The June 15 Guidance also uses mandatory language. See ECF 19-1 at 7–8 (“May a covered
employer require a transgender employee to dress in accordance with the employer’s
sex assigned at birth? No . . . .”); id. (“[E]mployers may not deny an employee equal access to a
bathroom . . . that corresponds to the employee’s gender identity.”); id. (“Could use of pronouns
or names that are inconsistent with an individual’s gender identity be considered harassment? Yes,
in certain circumstances.”). Such language commands, requires, orders, and dictates. See
Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (holding an EPA
document constituted final agency action when “the entire Guidance, from beginning to
10
end . . . read like a[n] ukase.”). Defendant cannot fall back on the Guidance’s boilerplate
provisions “stating [t]he contents of this document do not have force and effect of law and are not
meant to bind the public in any way.” ECF No. 19-1 at 3. Such a disclaimer does not render a
guidance non-final where legal consequences still flow from it, as they do here. See Appalachian
Power, 208 F.3d at 1023. Further, where the language of an EEOC guidance “broadly condemn[s]”
an employment practice, “it leaves no room for EEOC staff not to issue referrals to the Attorney
General when an employer” implements the condemned practice. E.E.O.C., 933 F.3d at 443.
Here, the challenged Guidance broadly condemns the employment practices that Plaintiff and its
agencies implement, leaving no wriggle room for EEOC to issue referrals to the Attorney General.
Therefore, legal consequences stem from the Guidance.
Finally, the June 15 Guidance creates safe harbors by which public employers can avoid
EEOC referrals to the Department of Justice. When “the language of the agency document is such
that private parties can rely on it as a norm or safe harbor by which to shape their actions, it can
be binding as a practical matter.” Id. at 442 (internal marks omitted). Here, the Guidance creates
at least three safe harbors in its requirement of dress code, bathroom, and pronoun usage
accommodations. And it “open[s] the field of potential plaintiffs,” id. at 444 (internal marks
omitted), inviting employees to “fil[e] a charge of discrimination against . . . a state . . . employer.”
ECF No. 19-1 at 8. Such an invitation imposes legal consequences.
Legal consequences also flow from the March 2 Guidance. Defendants argue the March 2
Guidance “does not purport to determine the outcome of any particular enforcement action or any
rights or obligations,” but “only ‘remind[s] parties of existing statutory duties, [and] merely
track[s] the statutory requirements and thus simply explain[s] something the statute already
require[s].” ECF No. 37 at 27 (citing Pros. & Patients for Customized Care v. Shalala, 56 F.3d
11
592, 602 (5th Cir. 1995)) (internal marks omitted). First, this argument ignores the fact the March 2
Guidance does more than merely “track” and “explain” existing statutory requirements as
explained above. Supra at 7–9.
Second, the March 2 Guidance — like the June 15 Guidance — binds agency staff.
Secretary Becerra issued a statement alongside the March 2 Guidance. See generally ECF No.31-1
at 17–20. In that statement, Secretary Becerra decried Texas’s interpretation of its own child-abuse
laws as “discriminatory and unconscionable.” Id. at 18. Secretary Becerra also stated he “directed
[his] team to evaluate the tools at [its] disposal” in response to the “discriminatory gubernatorial
order in Texas” and encouraging “[a]ny individual or family in Texas who is being targeted by a
child welfare investigation . . . to contract our Office for Civil Rights.” Id. Secretary Becerra’s
statement broadly condemns Plaintiff’s interpretation of its own laws and announces HHS’s
determination that Plaintiff’s actions violate federal law. How could HHS staff act contrary to this
statement? See Shalala, 56 F.3d at 599 (“We would expect agency employees to consider all
sources of pertinent information in performing [their] task[s], whether the information be
contained in a substantive rule, an interpretive rule, or a statement of policy. Indeed, what purpose
would an agency’s statement of policy serve if agency employees could not refer to it for
guidance?”). Thus, the March 2 Guidance — as described by Secretary Becerra — binds
HHS staff.
Finally, the March 2 Guidance widens the field of potential plaintiffs. Secretary Becerra’s
statement encourages “[a]ny individual or family in Teas who is being targeted by a child welfare
investigation because of this discriminatory gubernatorial order.” ECF No. 31-1at 18. Such an
invitation imposes legal consequences. And like the June 15 Guidance, the March 2 Guidance is
“binding as a practical matter because private parties can rely on it as a norm or safe harbor by
12
which to shape their actions.” E.E.O.C., 933 F.3d at 444 (internal marks omitted). The March 2
Guidance declares: “‘gender affirming care for minors’ must not be considered ‘abuse,’”
threatening Plaintiff to change its child abuse laws or risk the loss of federal healthcare funding.
ECF No. 42 at 11 (citing ECF No. 31-1 at 14–15). Considering the above, the Guidances mark
consummations of agency action and legal consequences flow from them. As Plaintiff surpasses
both prongs of the Bennett test, the Court finds the Guidances constitute final agency actions.
B. No Adequate, Alternative Remedy Precludes Judicial Review
A court may only review final agency action “for which there is no other adequate remedy
in a court.” 5 U.S.C. § 704. The “alternative remedy need only be adequate,” and “does not need
to be as effective as an APA lawsuit, merely that it provides the same genre of relief.” De La Garza
Gutierrez v. Pompeo, 741 F. App’x 994, 998 (5th Cir. 2018) (internal marks omitted). When an
adequate alternative remedy exists, the district court lacks subject matter jurisdiction to adjudicate
an APA claim. Id. at 997. Defendants argue the APA’s alternative remedy provision precludes
Plaintiff’s claims because the State “would have an opportunity to defend itself in any future Title
VII enforcement action,” designating that occurrence as the proper context for the assertion of
Plaintiff’s defenses. ECF No. 12 at 24 (citing NAACP v. Meese, 615 F. Supp. 200, 203 (D.D.C.
1985)).
Defendants’ arguments are belied by the very language cited in their briefs to this Court.
Defendants correctly assert the alternative remedy must merely “provide the same genre of relief.”
ECF No. 12 at 23 (emphasis added). Here, Plaintiff seeks pre-enforcement equitable relief.
Requiring Plaintiff to wait until EEOC moves to enforce the June 15 Guidance is an inadequate
alternative — it precludes Texas from obtaining the pre-enforcement equitable relief it seeks and
is not the “same genre of relief.” Furthermore, “a plaintiff need not . . . run the risk of enforcement
13
proceedings or pursue an arduous, expensive, and long . . . process to seek review of an already-
final agency action,” like the June 15 Guidance. De La Garza Gutierrez, 741 F. App’x at 998
(internal marks omitted).
Nor does Meese support Defendants’ argument. Meese did not concern reviewable agency
action; it involved an attempt to prevent the Attorney General from reopening any consent decree
pending in another court. 615 F. Supp. at 201–03. Additionally, courts in this district have rejected
agency attempts to rely on Meese when a final rule is challenged. See, e.g., Texas v. United States,
201 F. Supp. 3d 810, 826 n.14 (N.D. Tex. 2016).
Courts also allow pre-enforcement challenges to agency action even if the parties could
raise the same arguments as defenses in a future enforcement action. See Sackett v. E.P.A., 566
U.S. 120 (2012). In Sackett, the Supreme Court permitted a pre-enforcement challenge to an EPA
compliance order even though “judicial review ordinarily comes by way of a civil action” brought
by the agency. Id. at 127. The Court reasoned that no adequate remedy — apart from APA review
— existed where plaintiffs could not “initiate that process [of judicial review]” and were forced to
“wait for the Agency to drop the hammer” while accruing daily penalties. Id. Defendants believe
Sackett is inapposite, arguing Plaintiff “cannot point to any injury it is currently suffering or will
imminently suffer as a result of EEOC document.” ECF No. 29 at 25. But like the agency action
challenged in Sackett, EEOC forces Plaintiff to choose: (1) comply with the June 15 Guidance’s
accommodation mandates — against its own interests, or (2) violate the June 15 Guidance at risk
of financial penalties — while waiting for EEOC and the Department of Justice to “drop the
hammer.” ECF No. 18 at 39–40. Similarly situated to the plaintiffs in Sackett, Plaintiff’s only
adequate remedy is judicial review under the APA.
14
Defendants raise the same argument regarding the March 2 Guidance: Plaintiff “may
defend against any future enforcement of Section 1557 under the express administrative and
judicial review provisions provided by Congress.” ECF No. 37 at 23 (citing 42 U.S.C. § 18116(a)).
Just as with the June 15 Guidance, Defendants expect Plaintiff to choose between compliance with
the March 2 Guidance or violate the Guidance and wait for HHS to “drop the hammer” — a
situation that is only abated by a pre-enforcement challenge under the APA. Though Defendants
cite several cases to support their argument that review under the enforcement mechanisms of
Section 1557 provides the same genre of relief — see ECF No. 37 at 23–25 — as Plaintiff explains,
those cases “involve plaintiffs who file[d] lawsuits to attempt to evade already-underway
administrative proceedings.” ECF No. 42 at 13. Those cases are inapt; there is no ongoing
administrative proceedings regarding the issuance of the March 2 Guidance.
Finally, Defendants aver that Section 1557’s “procedure for adjudicative proceedings,
followed by judicial review, plainly reflects Congress’s desire to preclude pre-enforcement judicial
review of [Texas’s] claims.” ECF No. 37 at 25. Defendants argue the Supreme Court “held that a
statute providing for administrative proceedings followed by judicial review foreclose[s] a parallel
challenge to an agency’s statutory interpretation.” Id. at 25–26 (citing Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 207–08 (1994). Defendants assert this case is analogous to Thunder Basin,
and Congress’s intent to preclude pre-enforcement judicial review is “fairly discernible in the
statutory scheme” provided by Section 1557 through Title IX. Id. Specifically — like Thunder
Basin — Defendants aver no action has been taken against Plaintiff, Plaintiff’s claims turn on
statutory interpretation, the statute does not evince Congress’s intent to allow pre-enforcement
review, and the statute provides “opportunity for judicial review if the agency files an action in
federal court or seeks to withhold federal funds.” Id.
15
But Title IX does not preclude Plaintiff’s pre-enforcement action here. Regarding judicial
review, Title IX states:
Any department or agency action taken pursuant to section 1682 shall be subject to
such judicial review as may otherwise be provided by law for similar action taken
by such department or agency on other grounds. In the case of action, not otherwise
subject to judicial review, terminating or refusing to grant or to continue financial
assistance upon a finding of failure to comply with any requirement imposed
pursuant to section 1682 of this title, any person aggrieved (including any State or
political subdivision thereof and any agency of either) may obtain judicial review
of such action in accordance with chapter 7 of Title 5, and such action shall not be
deemed committed to unreviewable agency discretion within the meaning of
section 701 of that title.
20 U.S.C. § 1683.
Section 1682 describes two types of agency action: (1) “issuing rules, regulations, or orders
of general applicability” and (2) “termination of or refusal to grant or to continue assistance . . . as
to whom there has been an express finding on the record . . . of a failure to comply with such
requirement.” Id. § 1682. Here, Plaintiff challenges the issuance of “rules, regulations, or orders
of general applicability,” which is “subject to judicial review as . . . provided by law for similar
action.” Id. §§ 1682, 1683. The law providing access to judicial review is the APA, and Title IX
does not preclude review. 5 U.S.C. § 702. Other courts in this District have found the same. See
Texas v. United States, 201 F. Supp. 3d 810, 826–27 (N.D. Tex. 2016) (“Title IX [does not]
present[] [a] statutory scheme[] that would preclude Plaintiffs from bringing these claims in federal
district court. Indeed, the Supreme Court has held that Title IX’s enforcement provisions, codified
at Title 20 U.S.C. §§ 1681–1683, do[] not provide the exclusive statutory remedy for violations.”).
Unlike the statute at issue in Thunder Basin, whose “comprehensive enforcement structure
demonstrate[d] that Congress intended to preclude challenges,” “[n]o similar elaborate statutory
framework exists covering Plaintiff’s claims.” Thunder Basin, 510 U.S. at 200; Texas, 201 F. Supp.
3d at 826. Therefore, no adequate, alternative remedy exists to deprive the Court of jurisdiction.
16
C. Plaintiff has Article III Standing to Challenge the Guidances
Article III standing requires: (1) an injury in fact which is concrete and particularized,
actual or imminent, not conjectural or hypothetical; (2) the injury must be fairly traceable to the
challenged action; and (3) the injury must be redressable by a favorable ruling. Lujan v. Defs. of
Wildlife, 504 U.S. at 560–61. Before examining whether Plaintiff established standing under the
three above elements, the Court must analyze whether Plaintiff is owed special solicitude as a
State. See Texas v. Biden, 20 F.4th 928, 969 (5th Cir. 2021).
“Special solicitude has two requirements: (1) the State must have a procedural right to
challenge the action in question, and (2) the challenged action must affect one of the State’s quasi-
sovereign interests.” Id. When a State is entitled to special solicitude, “that means imminence and
redressability are easier to establish here than usual.” Id. at 970. Special solicitude also applies to
the traceability element of standing. “The Fifth Circuit has explicitly interpreted special solicitude
to lower the level of certainty required in the traditional causation . . . analysis.” Texas v. United
States, 549 F. Supp. 3d 572, 585 (S.D. Tex. July 16, 2021) (citing Texas v. United States, 809 F.3d
134, 159 (5th Cir. 2015)).
Plaintiff satisfies both prongs. Assertion of a procedural right under the APA to challenge
an agency action satisfies the first prong. Texas, 20 F.4th at. at 970; see also Texas, 809 F.3d at
152 (“In enacting the APA, Congress intended for those suffering legal wrong because of agency
action to have judicial recourse, and states fall well within that definition.” (internal marks
omitted)). Defendants aver Plaintiff holds no procedural right here, as the APA “extends a
procedural right to challenge final agency action for which there is no other adequate remedy in
court.” ECF No. 29 at 8 (internal marks omitted). Defendants also argue because “the EEOC
Document is merely explanatory . . . Plaintiff has no procedural right that it can properly assert
17
here.” Id. Even so, these arguments ignore the fact that the Guidances constitute final agency
action, as described above.
Plaintiff also satisfies the second prong. A State’s quasi-sovereign interests include those
implicated by: “(1) federal assertions of authority to regulate matters they believe they control, (2)
federal preemption of state law, and (3) federal interference with the enforcement of state law, at
least where the state statute at issue regulates behavior or provides for the administration of a state
program and does not simply purport to immunize state citizens from federal law.” Texas, 809
F.3d at 153 (internal marks omitted). Plaintiff’s interest in determining “how its agencies perform
their duties under State law, and how its employees conduct themselves” qualifies as the type of
quasi-sovereign interest supporting special solicitude. ECF No. 18 at 41. The June 15 Guidance
would preempt Texas law empowering the Commissioner of the Texas Department of Agriculture
(“TDA”) to “employ personnel as the duties of the department require” and to determine
“[employee] qualifications for employment and their responsibilities under the applicable laws
relating to standards of conduct for state employees.” TEX. AGRIC. CODE §§ 11.001, 12.013(a)
(empowering the commissioner of agriculture with responsibility for “exercising the powers and
performing the duties assigned to the department by [the Texas Agriculture Code]”). Defendants
argue Plaintiff “does not point to any actual employment policies or practices of the [TDA]
regarding transgender persons.” ECF No. 29 at 9. But the TDA does have such policies, even if
Defendants consider them “unwritten and contingent.” See generally ECF No. 1 at 8, ¶¶ 30–32
And the March 2 Guidance would interfere with the State’s enforcement of its own child abuse
laws. See generally ECF No. 26-1 at 14, ¶ 62. Meeting both prongs, Plaintiff is entitled to special
solicitude in the standing inquiry.
18
1. Plaintiff suffers from an alleged, imminent injury.
“An increased regulatory burden typically satisfies the injury in fact requirement.”
E.E.O.C., 933 F.3d at 446 (internal marks omitted). And “being pressured to change state law
constitutes an injury,” because “states have a sovereign interest in the power to create and enforce
a legal code.” Id. at 446–47 (citing Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015)). The
Fifth Circuit has stated the injury-in-fact requirement is satisfied when an EEOC “[g]uidance does,
at the very least, force Plaintiff to undergo an analysis, agency by agency, regarding whether the
certainty of EEOC investigations stemming from the [Guidance’s] standards overrides the State’s
interest.” E.E.O.C., 827 F.3d at 379. Past enforcement and “threatened enforcement of a law
create[s] an Article III injury.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–59 (2014).
Therefore, a plaintiff can articulate pre-enforcement standing when it can show “an intention to
engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder.” Id. (internal marks omitted)
Under these principles, Plaintiff has articulated an injury in fact.
Plaintiff meets the requirement of showing “an intention to engage in a course of conduct
arguably affected with a constitutional interest.” Id. As discussed above, Plaintiff holds a quasi-
sovereign interest in determining “how its agencies perform their duties under State law, and how
its employees conduct themselves.” ECF No. 18 at 41. And its agencies, such as the TDA, enforce
policies that govern how the agency will perform its duty and how its employees will conduct
themselves in the workplace. The State also has “a significant role to play in regulating the medical
profession” — Gonzales v. Carhart, 550 U.S. 124, 157 (2007) — and has fulfilled that role in
utilizing state agencies to investigate the subjection of children to elective gender-transition
procedures and administration of puberty-blocking drugs.
19
Plaintiff also meets the second requirement, showing that its present and intended future
conduct is proscribed by the June 15 Guidance’s accommodations mandates as well as the March
2 Guidance. The June 15 Guidance states that Title VII, which Defendants enforce and interpret
through that Guidance, “applies . . . to state and local government employers with 15 or more
employees.” ECF No.19-1 at 5. There is no indication from Defendants or in the record that the
Guidance does not apply to Plaintiff. As for the March 2 Guidance — the plain language of the
Guidance applies to Plaintiff, as the OCR document and Secretary Becerra’s statement call out the
application of Plaintiff’s child abuse laws. ECF 31-1, Exs. B & C.
Finally, a credible threat of prosecution exists under the Guidances. Again, the Guidances’
plain language suggests they apply to Plaintiff, and Defendants have not suggested they will not
apply to Plaintiff. Nothing “suggest[s] that [Defendants] will refrain from enforcing the
[Guidances] against [Texas].” Roark & Hardee LP v. City of Austin, 522 F.3d 533, 543 (5th Cir.
2008). In Roark & Hardee, injury in fact was found even when the defendant-city had not provided
notice or charged any plaintiffs for violating the challenged city ordinance. Id. Here, however,
Defendants admit in their Motion that EEOC has performed investigations, prosecuted lawsuits,
and entered consent decrees based on the interpretation of Title VII outlined in the June 15
Guidance. ECF No. 12 at 9 n.3. It thus stands to reason that Defendants would enforce the June 15
Guidance against Plaintiff. The March 2 Guidance goes even further — Secretary Becerra directly
referenced the “discriminatory gubernatorial order in Texas” and described the State’s action as
“discriminatory and unconscionable.” ECF No. 31-1 at 18. “When an individual is subject to such
a threat, an actual . . . enforcement action is not a prerequisite to challenging the law.” Susan B.
Anthony List, 573 U.S. at 158.
20
Defendants deploy myriad arguments against Article III injury. All fail to persuade.
First, Defendants argue Plaintiff lacks standing because the State is not “currently engaged in any
litigation alleging that it has violated Title VII’s antidiscrimination provisions” as they relate to
gender identity or sexual orientation “or that it is currently being investigated in connection with
a complaint of such discrimination . . . [n]or has it alleged that it is aware of any imminent or
threatened investigation.” ECF No. 12 at 16.
Relying on Trump v. New York, Defendants argue the lack of litigation or specter of
investigation confirms that Plaintiff’s injuries are too “speculative” to constitute an injury in fact
as there are too many “contingencies and speculations that impede judicial review.” 141
S. Ct. 530, 535 (2020). Defendants contend this is especially so because the June 15 Guidance is
“merely explanatory,” and a “long chain of procedural contingencies” must occur before Plaintiff
“might suffer any liability.” ECF No. 12 at 17.
But Trump is distinguishable. Trump involved a challenge to a presidential memorandum
instructing the Secretary of Commerce to take certain actions with regards to the 2020 Census
results. 141 S. Ct. at 534. As the Supreme Court explained, the case against the President was
“riddled with contingencies” because he had qualified his directive to the Secretary that he should
act “to the extent practicable,” making the alleged injury speculative. Id. at 535. Furthermore, the
Court recognized the tentative nature of the President’s action as “the Secretary [could] make (and
the President [could] direct) changes to the census up until the President transmits his statement to
the House.” Id. Unlike the memorandum and directive in Trump, “there is nothing tentative or
interlocutory” about the June 15 Guidance. ECF No. 18 at 40 n.11. Furthermore, the June 15
Guidance is not “merely explanatory.” As described above, the June 15 Guidance exceeds what is
required by Title VII as interpreted in Bostock. Supra, 4–7.
21
Second, Defendants aver that “[w]ithout any certainly impending harm, costs incurred in
anticipating and proactively responding to legal uncertainties are not Article III injuries.” ECF No.
12 at 17. Relying on Clapper v. Amnesty International USA, Defendants assert “any decision by
Texas to change its behavior due to a fear of future enforcement that is not certainly impending
does not confer standing.” Id. at 18. This argument ignores the recent jurisprudence, cited above,
recognizing the validation of a plaintiff’s Article III standing in a pre-enforcement action. And
Defendants argue the June 15 Guidance does not “regulate, constrain, or compel any action” on
Plaintiff’s part, and Plaintiff “has not shown any credible threat of an enforcement action by the
federal government against it, much less any threat that is certainly impending.” Id. (internal marks
omitted). But this argument once again ignores the fact that the Guidance applies an interpretation
of Title VII beyond that required in Bostock and ignores Supreme Court precedent such as Susan
B. Anthony List.
Defendants’ arguments notwithstanding, Plaintiff also seeks relief under the Declaratory
Judgment Act (“DJA”) — 28 U.S.C. §§ 2201–02 — which creates a mechanism for pre-
enforcement review of government action. “[W]here threatened action by government is
concerned, we do not require a plaintiff to expose himself to liability before bringing suit to
challenge the basis for the threat.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29
(2007). A plaintiff suing under the DJA has Article III standing whenever governmental coercion
“put[s] the challenger to the choice between abandoning his rights or risking prosecution.” Id. at
129. Plaintiff faces the dilemma of coercion here and “cannot simply abandon its rights and
forswear the authority granted by State law to its agencies as employers,” to avoid the risk of
prosecution. ECF No. 18 at 45. Thus, for this reason and the reasons discussed above, Plaintiff has
articulated an imminent injury.
22
2. Plaintiff’s injuries are traceable to the Guidances.
Defendants make two primary arguments against traceability of Plaintiff’s injuries to the
June 15 Guidance: (1) “[a]ny legal consequences flow from Title VII itself, not the [Guidance]”;
and (2) the “[Guidance] merely summarizes existing law and longstanding EEOC policy.” ECF
No. 12 at 19. As the Court has explained in detail, the Guidance diverges from Bostock and
EEOC’s relied-upon federal-sector decisions do not support the Guidance.
Plaintiff’s injuries are traceable because the June 15 Guidance, “not Title VII, condemns
[Plaintiff’s] policies,” and the Guidance, “not Title VII, pressures [Plaintiff] to change its laws and
policies or risk referral to the Attorney General by EEOC.” E.E.O.C., 933 F.3d at 448. As further
explained by the Fifth Circuit in that case, Plaintiff meets the traceability requirement because
“[t]he pressure on Texas to change its laws exists, in part, because the Attorney General has
prosecutorial power to bring enforcement actions against Texas based on EEOC referrals or a
pattern-or-practice claim . . . . That the Attorney General has not attempted to enforce the Guidance
against Texas does not deprive it of standing.” Id. at 449. Because Plaintiff’s injury and any legal
consequences it might face flow from the June 15 Guidance, the injury is traceable.
Defendants argue the same vis-à-vis the March 2 Guidance. ECF No. 37 at 15. As with the
June 15 Guidance, it is the March 2 Guidance — not Title IX — that directly condemns Plaintiff’s
policies and pressures the State to change it laws and policies to avoid adverse action taken by
HHS and its Office of Civil Rights. Plaintiff again meets the traceability requirement as the State
is pressured to change its laws and policies because HHS has the power and ability to withhold
billions of dollars in federal healthcare funding. “That the [HHS] has not attempted to enforce the
Guidance against Texas does not deprive it of standing.” E.E.O.C., 933 F.3d at 449. Here,
Plaintiff’s injury and potential consequences flow from and are traceable to the March 2 Guidance.
23
3. Plaintiff’s injuries are redressable by a favorable decision from this Court.
A judicial remedy redresses an injury where the “risk [of the alleged harm] would be
reduced to some extent if [the plaintiffs] received the relief they seek.” Massachusetts v.
E.P.A., 549 U.S. 497, 526 (2007). The “court’s remedy need not forestall every injury a plaintiff
will suffer.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. City of Lubbock, No.
5:21-CV-114-H, 2021 WL 4775135, at *7 (N.D. Tex. Oct. 13, 2021) (citing Massachusetts, 549
U.S. at 526 (emphasis in original)).
Defendants argue the redressability requirement is not met because private litigants could
still pursue Title VII claims and “HHS could investigate and adjudicate a complaint of sex
discrimination (including sexual orientation or gender identity discrimination) under [S]ection
1557” despite an order vacating the Guidances and enjoining Defendants. ECF No. 12 at 20; ECF
No. 37 at 16. Plaintiff agrees that such an order would not prevent suits from private litigants based
on the understanding of Title VII set forth in the June 15 Guidance. Yet such an order would reduce
the alleged harm to some extent. As for the March 2 Guidance, Plaintiff argues — and the Court
agrees — the judicial relief it seeks “against an agency action operates against the action — here,
the adoption of the interpretation — and not just the explanatory documents.” ECF No. 42 at 19
(emphasis added). Were the Court to grant Plaintiff the relief it seeks against the March 2 Guidance
— that is vacating the adoption of an interpretation of Title IX — the relief would reduce the risk
of the alleged harm in some way. Therefore, a favorable decision of the Court would redress
Plaintiff’s alleged injuries should the Court grant the relief sought.
Because Plaintiff has shown injury in fact, fairly traceable to the challenged agency action
and redressable by a favorable decision, Plaintiff has Article III standing to challenge the
Guidances.
24
D. Plaintiff’s Claims Are Ripe for Review
The Court now turns to the ripeness of Plaintiff’s claims. Agency rules, unlike statutes, are
“typically reviewable without waiting for enforcement.” U.S. Telecom Ass’n v. F.C.C., 825 F.3d
674, 739 (D.C. Cir. 2016). When deciding whether a plaintiff’s claims are ripe for judicial review,
a court “must consider whether: (1) delayed review would cause hardship to the plaintiff[]; (2)
judicial intervention would inappropriately interfere with further administrative action; and (3) the
courts would benefit from further factual development of the issues presented.” Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). Considering this test, Plaintiff’s claims are
ripe for review.
Here, delayed review would cause hardship to Plaintiff. In Ohio Forestry Ass’n, the Court
determined delay in judicial review would not cause hardship to the plaintiffs. This was because
the Land Resource Management Plan causing the alleged harm did “not command anyone to do
anything or refrain from doing anything; [did] not grant, withhold, or modify any formal legal
license, power, or authority; [did] not subject anyone to any civil or criminal liability; [and did]
not create . . . legal rights or obligations. Id. Unlike the Land Resource Management Plan at issue
in Ohio Forestry Association, the June 15 Guidance modifies formal legal authority and power,
and it creates legal obligations by forcing Plaintiff to change its employment policies to reflect
Defendants’ interpretation of Title VII that extends beyond what is required by Bostock. And it
subjects Plaintiff to civil liability should it violate the Guidance. The March 2 Guidance operates
similarly, creating legal obligations by forcing Plaintiff to modify its child abuse laws in
accordance with Defendant’s interpretation of Section 1557 and Title IX.
25
As discussed above, the Guidances harm Plaintiff now — coercing it to change its
employment policies and practices and enforcement of its child abuse laws or suffer legal
consequences. “Where a regulation requires an immediate and significant change in plaintiffs’
conduct of their affairs with serious penalties attached to noncompliance, hardship has been
demonstrated.” Roark & Hardee, 522 F.3d at 545. The Roark & Hardee court held that a challenge
to an Austin city ordinance was ripe for review because the ordinance forced the plaintiffs to
choose between compliance with the allegedly valid ordinance or risk a fine. Id. Plaintiff is
similarly situated: the Guidances coerce Plaintiff to abandon its workplace policies and
enforcement of its child abuse laws with threats of enforcement actions, civil penalties, and
withholding of federal funds.
Judicial intervention would not interfere with further administrative action. In Ohio
Forestry Association, the Court determined immediate judicial review would interfere with further
administrative action, as the possibility existed that further consideration would occur before the
Land Resource Management Plan’s implementation. 523 U.S. at 735. But nothing here suggests
the Guidances will undergo further consideration. Defendants argue the June 15 Guidance is based
on already established principles of law. EEOC has already launched investigations, prosecuted
misconduct, and entered consent decrees based on those legal principles. ECF No. 12 at 9, n.3.
And the March 2 Guidance — according to Defendants — “reflects the [HHS’s] prior
determination . . . that HHS will interpret Section 1557 to prohibit discrimination based on gender
identity.” ECF No. 37 at 13. No action by this court would interfere with any further administrative
action.
26
Finally, neither this Court nor any court on appellate review would benefit from further
factual development. Plaintiff’s claims are “purely legal, facial challenges” to the Guidance. ECF
No. 18 at 47; ECF No. 42 at 18. Facial challenges to a regulation are generally ripe the moment
the challenged regulation is passed. Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 736 n.10
(1997). A facial attack on a regulation raises a purely legal question and is therefore ripe. Opulent
Life Church v. City of Holly Springs, 697 F.3d 279, 287–88 (5th Cir. 2012). And in another case
involving Texas, EEOC, and EEOC’s felon-hiring guidance, the Fifth Circuit stated:
Having determined that the Guidance is final agency action under the APA, it
follows naturally that Texas’ APA claim is ripe for review. Texas’s challenge to
the EEOC Guidance is purely a legal one, and as such it is unnecessary to wait for
further factual development before rendering a decision. Furthermore, Texas faces
significant hardships should the court decline to consider its claims. Taking Texas’s
allegations as true, it must change its hiring practices to ensure compliance with the
Guidance, or face the numerous adverse effects already set forth.
E.E.O.C., 827 F.3d at 388 n.9 (internal marks omitted). The same is true of Plaintiff’s claims here,
the workplace policies it implements, and the enforcement of its own laws.
Defendants argue — regarding the June 15 Guidance — that this Court “is not in a position
to evaluate what, if any, actions by the Federal Government should be enjoined and what specific
conduct by Texas should be allowed” without “a concrete set of facts.” ECF No. 12 at 22. As
Plaintiff correctly responds, “only two facts matter.” ECF No.18 at 48. First, that Plaintiff argues
it is authorized by law to create (and has created) workplace policies that enforce sex-specific dress
codes, sex-segregated bathrooms, and pronoun usage based on biological sex. Id. Second, the June
15 Guidance, based on Defendants’ own interpretation of Bostock and Title VII, makes Plaintiff’s
policies unlawful. Id. Plaintiff and Defendants set forth competing understandings of Title VII. No
further factual development is necessary to adjudicate this dispute. Regarding the March 2
Guidance, Defendants argue “critical facts remain to be developed which would define the scope
27
of the controversy and aid the court in reaching a decision.” ECF No. 37 at 20. Plaintiff’s challenge
to the March 2 Guidance — however — is a facial attack raising a purely legal question on HHS’s
interpretation and enforcement of Section 1557. Plaintiff’s claims against HHS “need no factual
development because they do not involve a particular enforcement action . . . but challenge the
legality of a generally applicable rule.” ECF No. 42 at 19 (internal marks omitted).
Plaintiff satisfies all three prongs of the Ohio Forestry Association standard, and there is a
credible threat of enforcement against the State. Accordingly, Plaintiff’s claims are ripe for review.
E. The Court Lacks Jurisdiction Over Plaintiff’s Ultra Vires Claim
Plaintiff asserts the Guidances constitute ultra vires agency actions over which the Court
may exercise its jurisdiction. ECF No. 31 at 24–25. The Court may exercise its jurisdiction over
“agency action exceed[ing] the scope of its delegated authority or violat[ing] a clear statutory
mandate.” Kirby Corp. v. Pena, 109 F.3d 258, 268 (5th Cir. 1997); see also Leedom v. Kyne, 358
U.S. 184 (1958). Courts have “rarely exercised their jurisdiction under Kyne, and have limited
Kyne’s application to situations in which an agency has exceeded it delegated powers or on its face
violated a statute. Kirby Corp., 109 F.3d at 268–69 (internal marks omitted). And an “agency
action allegedly in excess of authority must not simply involve a dispute over statutory
interpretation or challenged findings of fact.” Am. Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th
Cir. 1999) (internal marks omitted).
Here, Plaintiff’s challenge to the Guidances raises — at its core — a dispute as to EEOC’s
and HHS’s interpretation and application of the word “sex” in Title VII and Title IX. Therefore,
the Court will not exercise jurisdiction over Plaintiff’s ultra vires claim in Count XI of the
Amended Complaint. The Court DISMISSES Count XI of the Amended Complaint.
28
CONCLUSION
For the reasons set forth above, Plaintiff meets its burden to establish this Court’s
jurisdiction over all its claims except for the ultra vires claim raised in Count XI of the Amended
Complaint. The Court GRANTS IN PART and DENIES IN PART Defendants’ Motions. The
Court DISMISSES Count XI of the Amended Complaint.
SO ORDERED.
May 26, 2022.
________________________________
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE
29

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Case: 22-5807 Document: 39 Filed: 01/24/2023 Page: 1

IN THE UNITED STATES COURT OF APPEALS

STATE OF TENNESSEE, et al.,

ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, et al.,

DEPARTMENT OF EDUCATION, et al.,

On Appeal from the United States District Court for the

BRIEF OF ALL PLAINTIFFS-APPELLEES

JONATHAN SKRMETTI CLARK LASSITER HILDABRAND

P.O. Box 20207

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE ISSUES...............................................................................3

STATEMENT OF THE CASE ..................................................................................7

A. Bostock’s Narrow Title VII Decision and Initial Response .......................7

B. President Biden’s Executive Order and Challenged Documents ...............8

1. Department of Education Interpretation and Fact Sheet ...................8

2. EEOC Technical Assistance Document ............................................9

C. District Court Decision .............................................................................10

SUMMARY OF ARGUMENT ................................................................................13

STANDARD OF REVIEW ......................................................................................14

A. The Interpretation and Fact Sheet injure Plaintiff States..........................15

1. At least 16 States’ laws arguably conflict with the guidance ..............16

2. The injuries to the States are real, not abstract ....................................19

A. Plaintiff States’ claims are reviewable ....................................................25

2. Plaintiffs lack an adequate alternative remedy .................................30

3. Title IX does not provide an exclusive enforcement structure that

B. Plaintiffs are likely to prevail on their procedural APA

2. The Interpretation and Fact Sheet are arbitrary and capricious..........38

C. Plaintiffs are likely to succeed on their claims that the Interpretation

1. The Interpretation and Fact Sheet are contrary to Title IX ...............39

D. Preliminary relief from the Interpretation and Fact Sheet prevents

A. The proper judgment is dismissal of the voluntarily mooted appeal ..........52

B. Plaintiffs had standing to challenge the EEOC’s guidance .........................54

ADDENDUM ....................................................................................................... A-1

Abbott Labs. v. Gardner,

Adams v. Sch. Bd. of St. Johns Cnty.,

Adams v. Sch. Bd. of St. Johns Cnty.,

Adams v. Sch. Bd. of St. Johns Cnty.,

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,

Appalachian Power Co. v. EPA,

Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

B.P.J. v. W. Va. State Bd. of Educ.,

Babbitt v. Farm Workers,

Ballard v. United States,

Bostock v. Clayton County,

City of Pontiac Retired Emps. Ass’n v. Schimmel,

Ctr. for Auto Safety v. NHTSA,

Czyzewski v. Jevic Holding Corp.,

Deja Vu of Nashville, Inc. v. Metro. Gov’t,

Dep’t of Com. v. New York,

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

Detroit Edison Co. v. EPA,

Dismas Charities, Inc. v. DOJ,

Dodds v. U.S. Department of Education,

Doe v. Univ. of Cincinnati,

D.T. v. Sumner Cnty. Schs.,

E. Bay Sanctuary Covenant v. Garland,

EEOC v. G.R. Harris Funeral Homes, Inc.,