Joseph Fons holding a Pride Flag, stands in front of the U.S. Supreme Court building after the court ruled that LGBTQ people can not be disciplined or fired based on their sexual orientation June 15, 2020. (Photo: Chip Somodevilla/Getty Images)
A Tennessee federal judge is blocking the Biden administration from enforcing an executive order designed to protect the LGBTQ community from discrimination in schools and the workplace.
U.S. District Judge Charles Atchley Jr. on Friday issued a preliminary injunction that temporarily bars the U.S. Department of Education and the Equal Employment Opportunity Commission from enforcing the anti-discrimination executive order issued by the Biden administration in January 2021.
The ruling comes in a lawsuit filed by Tennessee Attorney General Herbert H. Slatery III and his colleagues in 19 Republican states — Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.
“The court understands that a preliminary injunction is an extraordinary remedy,” wrote Atchley, a 2020 Republican appointee to the court. “However, this case presents extraordinary circumstances.”
The Biden executive order came after a June 2020 landmark decision by the U.S. Supreme Court that expanded the legal definition of sex discrimination to include sexual orientation and gender identity in employment situations.
Citing the high court’s decision, the Biden administration directed federal agencies to enact rules that specifically prohibited sex discrimination based on sexual orientation and gender identity. In June 2021, the Department of Education and EEOC, in turn, issued “guidance documents,” prohibiting such discrimination and promising enforcement action against violators, including the loss of federal funding for schools.
“Keep in mind these new, transformative rules were made without you, without your elected leaders in Congress having a say, which is what the law requires. We are thankful the court put a stop to it, maintained the status quo as the lawsuit proceeds, and reminded the federal government it cannot direct its agencies to rewrite the law.”
– Tennessee Attorney General Herbert Slatery III.
With Slatery in the lead, attorneys general for 20 Republican-led states filed suit in U.S. District Court in Knoxville to block enforcement of Biden’s order and the agencies’ related “guidance documents,” arguing, among other things, a violation of states’ rights to govern.
They asked Atchley to issue a preliminary injunction, barring any change in discrimination policy until their lawsuit can be heard, decided and appealed.
In his Friday ruling, Atchley agreed.
Judge: ‘Untenable choice’
The judge said the Biden administration had gone too far and too quickly, stretching the U.S. Supreme Court’s employment-based decision beyond its “narrow” holding, usurping the authority of Congress and state Legislatures and failing to give lawmakers and the public a say on the issue.
“At a minimum, (the Biden administration executive order and agencies’) guidance appears to deem conduct required by plaintiffs’ state laws to be unlawful sex discrimination under federal law,” Atchley wrote. “(The administration) has vowed to enforce these statues consistent with the challenged guidance, and (the Biden administration and agencies) do not dispute that an enforcement action puts (states) at risk of losing substantial federal funding.”
Atchley noted in the opinion that the Tennessee Department of Education in the 2020-2021 school year received more than $1.5 billion in federal funding, and the Tennessee’s public higher educational institutions received more than $88 million.
“The loss of such critical federal funding would require Tennessee to eliminate certain educational services or seek new funding sources to continue offering the same programs,” Atchley wrote.
“Therefore, as it currently stands, (states, including Tennessee) must choose between the threat of legal consequences — enforcement action, civil penalties, and the withholding of federal funding — or altering their state laws to ensure compliance with the guidance and avoid such adverse action,” the judge continued.
“(The Biden administration and agencies’) guidance documents presently harm plaintiff states by undermining their sovereign authority to enforce their state laws as written and imposing substantial pressure on (states) to change their state laws,” Atchley wrote.
“(States) must either forgo the enforcement of their conflicting state laws to comply with the allegedly unlawful guidance or violate the guidance and risk significant legal consequences,” Atchley continued. “This is an untenable choice.”
AG: Judge got it right
Atchley carefully sidestepped the issue of whether the state laws at issue are, in fact, discriminatory.
“(The Biden administration has) a public interest in enforcing (anti-discrimination policies) to the fullest extent permissible,” Atchley wrote. “Likewise, (states) undoubtedly have a strong public interest in enforcing their duly enacted state laws and protecting the underlying policies.
“The court understands that both sides feel strongly about their positions on the relevant legal and social policy questions, and the public’s interest in the correct application of the law will be served by maintaining the status quo while the court resolves these issues,” Atchley continued.
“An injunction will ensure that the agencies are not exceeding their express authority delegated by Congress,” he wrote.
Slatery hailed the ruling in a release made public Sunday.
“The District Court rightly recognized the federal government put Tennessee and other states in an impossible situation: choose between the threat of legal consequences including the withholding of federal funding or altering our state laws to comply,” Slatery stated in the release.
“Keep in mind these new, transformative rules were made without you, without your elected leaders in Congress having a say, which is what the law requires,” he stated. “We are thankful the court put a stop to it, maintained the status quo as the lawsuit proceeds, and reminded the federal government it cannot direct its agencies to rewrite the law.”
The Biden administration could seek to appeal Atchley’s ruling to the 6th Circuit U.S. Court of Appeals. There’s no guarantee the judge will grant an appeal or that the appellate court will agree to hear one, though, and the injunction will remain in place pending further proceedings.
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