THE STATE OF TENNESSEE, et al.,
`
`
`Plaintiffs,
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT KNOXVILLE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`Case No. 3:21-cv-308
`
`Judge Atchley
`
`Magistrate Judge Poplin
`
`
`v.
`
`
`UNITED STATES DEPARTMENT OF
`EDUCATION, et al.,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`
`
`Before the Court is the Motion for Preliminary Injunction [Doc. 10] filed by Plaintiff
`
`States1 and the Motion to Dismiss [Doc. 49] filed by Defendants United States Department of
`
`Education and Miguel Cardona, in his official capacity as Secretary of Education; Equal
`
`Employment Opportunity Commission and Charlotte Burrows, in her official capacity as the
`
`Chair of the Equal Employment Opportunity Commission; and United States Department of
`
`Justice, Merrick Garland, in his official capacity as Attorney General of the United States, and
`
`Kristen Clarke, in her official capacity as the Assistant Attorney General for Civil Rights. The
`
`relevant issues have been fully briefed, and the Court heard oral argument. These motions are now
`
`ripe for review.
`
`
`
`For the reasons below, Plaintiffs’ Motion for Preliminary Injunction [Doc. 10] is
`
`GRANTED and Defendants’ Motion to Dismiss [Doc. 49] is DENIED.
`
`
`1 Plaintiff States consist of Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas,
`Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and
`West Virginia.
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 1 of 47 PageID #: 1942
`
`

`

`I.
`
`BACKGROUND
`
`A. Bostock v. Clayton County
`
`In Bostock v. Clayton County, the Supreme Court of the United States was asked to resolve
`
`a discrete legal issue: whether Title VII of the Civil Rights Act of 1964, which prohibits
`
`employment discrimination “because of…sex,” bars an employer from firing someone simply for
`
`being homosexual or transgender. 140 S. Ct. 1731, 1738-39 (2020). The Court answered this
`
`question affirmatively.
`
`The Court explained that Title VII’s “because of…sex” language incorporates a “but-for”
`
`causation standard; so long as “sex” was one “but-for” cause of an employee’s termination, that is
`
`sufficient to trigger Title VII. Id. at 1739. The Court further explained that “sex” refers to the
`
`biological distinctions between males and females. Id. Taken together, the Court clarified that
`
`“[a]n employer violates Title VII when it intentionally fires an individual employee based in part
`
`on sex.” Id. at 1741.
`
`The Court then reasoned that “it is impossible to discriminate against a person for being
`
`homosexual or transgender without discriminating against that individual based on sex.” Id.
`
`“[H]omosexuality and transgender status are inextricably bound up with sex” because “to
`
`discriminate on these grounds requires an employer to intentionally treat individual employees
`
`differently because of their sex.” Id. at 1742. The Court held that, under Title VII, “employers
`
`are prohibited from firing employees on the basis of homosexuality or transgender status.” Id. at
`
`1753.
`
`The Court was careful to narrow the scope of its holding. Id. That is, its holding did not
`
`“sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” Id. Nor
`
`did the Court’s decision “purport to address bathrooms, locker rooms, [dress codes] or anything
`
`2
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 2 of 47 PageID #: 1943
`
`

`

`else of the kind.” Id. The Court expressly declined to “prejudge” any laws or issues not before it,
`
`observing instead that “[w]hether policies and practices might or might not qualify as unlawful
`
`discrimination or find justifications under other provisions of Title VII are questions for future
`
`cases.” Id.
`
`B. Executive Order
`
`On January 20, 2021, the President of the United States signed an “Executive Order on
`
`Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
`
`Exec. Order. No. 13988, 86 Fed. Reg. 7023-25 (Jan. 20, 2021) (herein “President’s Executive
`
`Order”). Under the Supreme Court’s reasoning in Bostock, the Executive Order declared that “laws
`
`that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual
`
`orientation.” Id. (citing Bostock, 140 S. Ct. 1731). The President directed federal agencies to “fully
`
`implement statutes that prohibit sex discrimination” consistent with the Administration’s
`
`interpretation. Id.
`
`C. Agency Response to Executive Order
`
`In response to the President’s Executive Order, the Department of Education
`
`(“Department”) and Equal Employment Opportunity Commission (“EEOC”) issued guidance
`
`documents providing their interpretations of Title IX of the Education Amendments Act of
`
`1972 (“Title IX”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), respectively.
`
`1. Department of Education
`
`Defendant United States Department of Education is an executive agency of the federal
`
`government responsible for the enforcement and administration of Title IX. [Doc. 1 at ¶ 17] (citing
`
`20 U.S.C. §§ 3411, 3441).
`
`3
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 3 of 47 PageID #: 1944
`
`

`

`On June 22, 2021, the Department published in the Federal Register an “Interpretation” of
`
`Title IX. [Doc. 1-2] (“Enforcement of Title IX of the Education Amendments of 1972 With
`
`Respect to Discrimination on Sexual Orientation and Gender Identity in Light of Bostock v.
`
`Clayton County.” 86 Fed. Reg. 32637 (June 22, 2021)). The Interpretation took effect upon
`
`publication. [Id.]. The Department recognized that the Interpretation represented a change in
`
`position, explaining the purpose of the Interpretation was “to make clear that the Department
`
`interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on
`
`sexual orientation and gender identity” in light of the Bostock decision. [Id.]. The Interpretation
`
`states that the Department “will fully enforce Title IX to prohibit discrimination based on sexual
`
`orientation and gender identity in education programs and activities that receive Federal financial
`
`assistance from the Department” and that the Interpretation “will guide the Department in
`
`processing complaints and conducting investigations.” [Id.]. The Interpretation “supersedes and
`
`replaces any prior inconsistent statements made by the Department regarding the scope of Title
`
`IX’s jurisdiction over discrimination based on sexual orientation and gender identity.” [Id.].
`
`Subsequently, on June 23, 2021, the Department issued a “Dear Educator” letter to directly
`
`notify those subject to Title IX of the Department’s Interpretation. [Doc. 1-4] (“Letter to
`
`Educators on Title IX’s 49th Anniversary” (June 23, 2021)).2 The “Dear Educator” letter
`
`reiterates that “Title IX’s protection against sex discrimination encompasses discrimination
`
`based on sexual orientation and gender identity” and explains that the Department “will fully
`
`enforce Title IX to prohibit discrimination based on sexual orientation and gender identity.”
`
`[Id.].
`
`
`2 https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/educator-202106-tix.pdf (last visited July
`15, 2022).
`
`
`4
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 4 of 47 PageID #: 1945
`
`

`

`The “Dear Educator” letter references an accompanying “Fact Sheet” that expounds on
`
`the Department’s interpretation of Title IX. [Doc. 1-4] (“U.S. Dep’t of Justice & U.S. Dep’t of
`
`Educ., Confronting Anti-LGBTQI+ Harassment in Schools” (June 2021)).3 The Fact Sheet
`
`explains that “discrimination against students based on their sexual orientation or gender identity
`
`is a form of discrimination prohibited by federal law.” [Id.]. The Fact Sheet also notes that
`
`regulated entities “have a responsibility to investigate and address sex discrimination, including
`
`sexual harassment, against students because of their perceived or actual sexual orientation or
`
`gender identity.” [Id.]. The Fact Sheet states that the Department “can [] provide information to
`
`assist schools in meeting their legal obligations,” and offers examples of specific conduct related
`
`to sexual orientation and gender identity that the Department can investigate as incidents of
`
`discrimination under Title IX. [Id.].
`
`2. Equal Employment Opportunity Commission
`
`Defendant Equal Employment Opportunity Commission is a federal agency charged with
`
`limited enforcement of, among other things, Title VII. [Doc. 1 at ¶ 19] (citing 42 U.S.C. § 2000e-
`
`6).
`
`On June 15, 2021, the EEOC issued a “Technical Assistance Document.” [Doc. 1-5]
`
`(“Protections Against Employment Discrimination Based on Sexual Orientation or Gender
`
`Identity” (June 15, 2021)).4 The Technical Assistance Document “explains what the Bostock
`
`decision means for LGBTQ+ workers (and all covered workers) and for employers across the
`
`country” and “explains the [EEOC’s] established legal positions on LGBTQ+ related matters.”
`
`Id.
`
`
`3 https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-tix-202106.pdf (last visited July 15, 2022).
`
` 4
`
` https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-
`gender (last visited July 15, 2022).
`
`5
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 5 of 47 PageID #: 1946
`
`

`

`After summarizing Title VII’s general requirements, the Technical Assistance Document
`
`provides examples of employer conduct that would constitute discrimination under Bostock
`
`through a series of questions and answers. Id. Specifically, the Technical Assistance Document
`
`purports to explain employers’ obligations with respect to dress codes, bathrooms, locker rooms,
`
`showers, and use of preferred pronouns or names. [Id.]. The Technical Assistance Document
`
`cautions that it “does not have the force and effect of law and is not meant to bind the public in
`
`any way.” [Id.]. Instead, the Technical Assistance Document is “intended only to provide clarity
`
`to the public regarding existing requirements under the law.” [Id.]. The Technical Assistance
`
`Document invites individuals to file a charge of discrimination with the EEOC if they believe
`
`their rights under Title VII, as explained within the document, have been violated. [Id.].
`
`D. Current Lawsuit
`
`Plaintiff States are employers subject to the requirements of Title VII, and are home to
`
`political subdivisions and other employers subject to the requirements of Title VII. [Doc. 1 at ¶¶
`
`8-9, 15-16].5 Plaintiff States also oversee and operate educational institutions and other
`
`educational programs and activities that receive federal funding and are thus subject to the
`
`requirements of Title IX. [Id. at ¶¶ 12, 15].
`
`On August 30, 2021, Plaintiffs filed a Complaint challenging the legality of the guidance
`
`documents issued by the Department and the EEOC in response to the President’s Executive
`
`Order. [Id.]. Specifically, Plaintiffs contend that Defendants’ guidance documents are procedurally
`
`and substantively unlawful under the Administrative Procedure Act (“APA”) and the United States
`
`
`5 For consistency and ease of reference, record citations are to the CM/ECF-stamped document and page number, not
`to the internal pagination of any filed document. Where possible, citation is made to more specific subdivisions within
`a document.
`
`6
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 6 of 47 PageID #: 1947
`
`

`

`Constitution. [Id.]. Plaintiffs seek preliminary and permanent injunctive and declaratory relief and
`
`a judgment setting aside Defendants’ guidance documents. [Id. at 33-34].
`
`On September 2, 2021, Plaintiffs filed a Motion for Preliminary Injunction [Doc. 10],
`
`requesting the Court to enjoin Defendants from enforcing the challenged guidance documents until
`
`this case is resolved on the merits. Defendants then filed a Motion to Dismiss [Doc. 49], seeking
`
`dismissal of this action in its entirety. Defendants claim (1) the Court lacks subject matter
`
`jurisdiction to consider Plaintiffs’ claims and (2) Plaintiffs fail to state plausible claims for relief.
`
`[Id.].
`
`II.
`
`STANDARD OF REVIEW
`
`
`
`Rule 65 of the Federal Rules of Civil Procedure permits a party to seek injunctive relief
`
`to prevent immediate and irreparable injury, loss, or damage. The purpose of a preliminary
`
`injunction is to preserve the respective positions of the parties until a trial on the merits can be
`
`held. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Certified Restoration Dry Clean
`
`Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007).
`
`
`
`Whether to issue a preliminary injunction is committed to the sound discretion of the trial
`
`court. Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). A
`
`preliminary injunction is an “extraordinary and drastic remedy” that “may only be awarded upon
`
`a clear showing that the [moving party] is entitled to such relief.” Fowler v. Benson, 924 F.3d 247,
`
`256 (6th Cir. 2019) (internal citations omitted). “[T]he party seeking a preliminary injunction bears
`
`the burden of justifying such relief.” Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty.,
`
`796 F.3d 636, 642 (6th Cir. 2015); see also Fed. R. Civ. P. 65(b).
`
`
`
`In the United States Court of Appeals for the Sixth Circuit, four factors determine when a
`
`court should grant a preliminary injunction: “(1) whether the movant has shown a likelihood of
`
`7
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 7 of 47 PageID #: 1948
`
`

`

`success on the merits; (2) whether the moving party will be irreparably injured absent an
`
`injunction; (3) whether issuing an injunction will harm other parties to the litigation; and (4)
`
`whether an injunction is in the public interest.” Vitolo v. Guzman, 999 F.3d 353, 360 (6th Cir.
`
`2021) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). These four factors are “to be balanced”
`
`against one another; they are “not prerequisites that must be met.” Michael v. Futhey, 2009 WL
`
`4981688, at *17 (6th Cir. Dec. 17, 2009).
`
`
`
`Furthermore, “in addition to demonstrating a likelihood of success on the substantive
`
`claims, a plaintiff must also show a likelihood of success of establishing jurisdiction.” Memphis
`
`A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021) (citing Waskul v. Washtenaw
`
`Cnty. Cmty. Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018)). “If a plaintiff cannot show
`
`a likelihood of jurisdiction, then the court will deny the preliminary injunction.” Id. (explaining
`
`that there is no continuing need for a preliminary injunction when there is not a substantial
`
`likelihood that the claims will remain justiciable).
`
`III. ANALYSIS
`
`As an initial matter, there is substantial overlap between the pending motions. Defendants
`
`contend Plaintiffs are not entitled to a preliminary injunction for the same reasons this action
`
`should be dismissed. Because Defendants’ arguments in opposition to the requested injunctive
`
`relief are identical to their arguments for dismissal, the Court will resolve both motions in the
`
`context of determining whether a preliminary injunction is warranted. Hils v. Davis, 2022 WL
`
`769509, at *5 (S.D. Ohio Mar. 14, 2022) (collecting cases) (“Because Defendants’ position on
`
`Plaintiffs’ likelihood of success on the merits is identical to their motion to dismiss, the Court
`
`will analyze these questions together.”); Austin v. United Auto Workers Intern. Union, 2004 WL
`
`2112730, at *2-3 (E.D. Mich. June 4, 2004) (holding that plaintiff’s failure to demonstrate a
`
`8
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 8 of 47 PageID #: 1949
`
`

`

`likelihood of success on the merits also signified a failure to state a claim sufficient to survive a
`
`motion to dismiss).
`
`A.
`
`Jurisdiction
`
`
`
`Plaintiffs maintain that their claims are justiciable, [Doc. 11 at 16-18], while Defendants
`
`contend the Court lacks subject matter jurisdiction. [Doc. 48 at 26-34]. Specifically, Defendants
`
`argue that Plaintiffs lack standing and their claims are not yet ripe for review. [Id.].6
`
`1. Standing
`
`
`
`Article III of the United States Constitution limits the jurisdiction of federal courts to
`
`actual cases and controversies. U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S.
`
`555, 559-60 (1992). “Standing is a core component of this ‘case or controversy requirement of
`
`Article III.’” Memphis A. Philip Randolph Inst., 2 F.4th at 555 (quoting Lujan, 504 U.S. at 560).
`
`Standing is a “threshold question in every federal case” that asks “whether the plaintiff is [a] proper
`
`party to bring [a particular lawsuit].” Coyne v. American Tobacco Co., 183 F.3d 488, 496 (6th Cir.
`
`1999); Raines v. Byrd, 521 U.S. 811, 818 (1997). Standing ensures that the plaintiff has a sufficient
`
`“personal stake in the outcome of the controversy as to warrant the invocation of federal court
`
`jurisdiction and to justify exercise of the court’s remedial powers on [their] behalf.” Lugo v. Miller,
`
`640 F.2d 823, 827 (6th Cir. 1981).
`
`
`
`“[T]he presence of one party with standing is sufficient to satisfy Article III’s case or
`
`controversy requirement.” Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 52 n.2
`
`
`6 Defendants also contend that the Court lacks jurisdiction over Plaintiffs’ APA claims because Plaintiffs have an
`adequate alternative remedy available to them. [Doc. 49-1 at 16-19]. However, “[b]ecause the APA is not a
`jurisdiction-conferring statute, ‘[the] elements of a claim under the APA…are not jurisdictional.’” Haines v. Fed.
`Motor Carrier Safety Admin., 814 F.3d 417, 424 (6th Cir. 2016) (quoting Jama v. Dep’t of Homeland Sec., 760 F.3d
`490, 494 (6th Cir. 2014)). While there are threshold questions under the APA, such questions speak to the failure to
`state a claim under Rule 12(b)(6) rather than a lack of subject matter jurisdiction under Rule 12(b)(1). Id. at 424-27
`(“To state a claim for relief under the APA, a plaintiff must allege that his or her injury stems from a final agency
`action for which there is no other adequate remedy in court.”)
`
`9
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 9 of 47 PageID #: 1950
`
`

`

`(2006); Phillips v. Snyder, 836 F.3d 707, 714 n.2 (6th Cir. 2016) (collecting cases). To satisfy
`
`Article III’s standing requirement, a plaintiff must demonstrate (1) it has suffered an injury in fact;
`
`(2) that injury is fairly traceable to the challenged conduct of the defendant; and (3) that the injury
`
`will likely be redressed by a favorable decision. Lujan, 504 U.S. at 560-61; Spokeo Inc. v. Robins,
`
`136 S. Ct. 1540, 1547 (2016) (summarizing the standing elements as: (1) injury in fact; (2)
`
`traceability; and (3) redressability). To obtain injunctive relief, a plaintiff “must show actual
`
`present harm or a significant possibility of future harm.” Grendell v. Ohio Supreme Court, 252
`
`F.3d 828, 832 (6th Cir. 2001).
`
`
`
`As a threshold matter, it is of great significance that Plaintiffs are sovereign States, as States
`
`constitute a special class of litigants for federal jurisdictional purposes. Massachusetts v. EPA, 127
`
`S. Ct. 1438, 1453-54 (2007). In Massachusetts, the Supreme Court noted “[i]t is of considerable
`
`relevance that the party seeking review here is a sovereign State and not…a private individual.”
`
`Id. at 1454. “States are not normal litigants for the purposes of invoking federal jurisdiction,” thus,
`
`Plaintiff States are entitled to “special solicitude” in the Court’s standing analysis. Id. at 1454-55;
`
`see also Arizona v. Biden, 2022 WL 2437870, at *5 (6th Cir. July 5, 2022) (quoting Massachusetts,
`
`127 S. Ct. 1438) (explaining “States sometimes are entitled to ‘special solicitude’…because they
`
`may incur ‘quasi-sovereign’ injuries that private parties cannot.”). However, any “special
`
`solicitude” afforded to States does not eliminate the core standing requirements of an injury in
`
`fact, causation, and redressability. Id. at 1455-59; Arizona, 2022 WL 2437870 at *5.
`
`
`
`Here, the primary dispute centers around the injury in fact requirement. “A plaintiff
`
`suffers an ‘injury in fact’ when [their] legally protected interest has been invaded and the injury
`
`is both ‘concrete and particularized’ and ‘actual or imminent;’ not ‘conjectural or hypothetical.’”
`
`Kiser v. Reitz, 765 F.3d 601, 607 (6th Cir. 2014) (quoting Lujan, 504 U.S. at 560). Plaintiffs
`
`10
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 10 of 47 PageID #: 1951
`
`

`

`identify several injuries inflicted by the challenged guidance. [Doc. 11 at 17]. During oral
`
`argument, Plaintiffs represented that the alleged injury to their sovereign interests is the most direct
`
`injury that confers standing. The Court agrees.
`
`
`
`It is well-established that “[S]tates have a sovereign interest in ‘the power to create and
`
`enforce a legal code.’” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,
`
`601-02 (1982); see also Maine v. Taylor, 477 U.S. 131, 137 (1986) (“[A] State clearly has a
`
`legitimate interest in the continued enforceability of its own statutes.”). Pursuant to that interest,
`
`courts have recognized that States suffer a cognizable injury for purposes of constitutional standing
`
`when they allege an intrusion on their ability to enforce their own legal code, whether by way of
`
`direct interference or interference analogous to substantial pressure to change state laws. Id. 7
`
`
`
`Plaintiffs contend they are presently injured by Defendants’ guidance documents, as the
`
`guidance directly interferes with Plaintiffs’ sovereign authority to enforce state laws. [Doc. 11 at
`
`17]. Plaintiffs claim they have exercised their sovereign authority to enact laws that “arguably
`
`
`7 See also Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002, 1004 (2022) (internal citations
`omitted) (“A State clearly has a legitimate interest in the continued enforceability of its own statutes, and a State’s
`opportunity to defend its laws in federal court should not be lightly cut off.”); Colorado v. Toll, 268 U.S. 228, 229-30
`(1925) (allowing Colorado to challenge federal regulations alleged “to interfere with the sovereign rights of the
`State”); Missouri v. Holland, 252 U.S. 416, 431 (1920) (taking jurisdiction over an action to enjoin enforcement of a
`federal statute that interfered with Missouri’s ability to enforce its regulations on the same subject); Ohio ex rel.
`Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232-33 (6th Cir. 1985) (finding Ohio had standing to challenge a
`federal agency’s regulation that “endangered and rendered uncertain” a state statute); Texas v. EEOC, 933 F.3d 433,
`446 (5th Cir. 2019) (internal citations omitted) (“[B]eing pressured to change state law constitutes an injury because
`states have a sovereign interest in the power to create and enforce a legal code.”); Massachusetts v. U.S. Dep’t of
`Educ., 340 F. Supp.3d 7, 12 (D.C. Cir. 2018) (citing Alfred L. Snapp & Son, Inc., 458 U.S. at 601-02); Texas v. United
`States, 809 F.3d 134, 153 (5th Cir. 2015) (“In the absence of an actual conflict [between federal action and a state’s
`ability to regulate], courts have also found a cognizable interference where the federal action creates an
`intrusion…analogous to pressure to change state law.”); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 268
`(4th Cir. 2011) (“A federal statute that hinders a state’s exercise of this sovereign power to ‘create and enforce a legal
`code’ at least arguably inflicts an injury sufficient to provide a state standing to challenge the federal statute.”);
`Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008) (finding that Wyoming had standing
`to challenge federal agency’s interpretation of federal firearms law that undermined Wyoming’s ability to enforce its
`own legal code); State of Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989) (finding a sufficient
`injury in fact because federal regulations interfered with the States’ sovereign interest in enforcing their own laws);
`New York v. Mnuchin, 408 F. Supp.3d 399, 410 (S.D.N.Y. Sept. 30, 2019) (finding States presented viable grounds
`for establishing standing based, in part, on pressure to change their tax policies).
`
`
`11
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 11 of 47 PageID #: 1952
`
`

`

`conflict” with the guidance documents, identifying specific statutes to bolster their allegations.
`
`[Docs. 57 at 11; 1 at ¶¶ 98-99]. Plaintiffs argue that based on Defendants’ guidance, conduct
`
`required under their state laws constitutes sex discrimination under Titles VII and IX. [Doc. 11 at
`
`18]. Therefore, Plaintiffs claim Defendants’ interpretations of Titles VII and IX, as set forth in the
`
`challenged guidance, directly interfere with and threaten their ability to enforce their state laws as
`
`written. [Docs. 1 at ¶ 108; 11 at 17].
`
`
`
`It is well-settled that Plaintiffs have a concrete interest in the continued enforceability
`
`of their state laws, and ten Plaintiff States have identified a plausible conflict between their state
`
`laws and Defendants’ guidance documents. Plaintiffs have enacted, and are currently enforcing,
`
`statutes that arguably conflict with Defendants’ guidance as to the legality of certain conduct
`
`related to sexual orientation and gender identity.
`
`
`
`For example, Tennessee has a statute providing “[a] student’s gender for purposes of
`
`participation in a public middle school or high school interscholastic athletic activity or event
`
`must be determined by the student’s sex at the time of the student’s birth.” [Id. at ¶ 98].8 Yet, the
`
`Department’s Fact Sheet, which purports to explain existing obligations under Title IX,
`
`highlights that students should be allowed to participate on a sports team consistent with their
`
`gender identity, rather than biological sex. [Doc. 1-4]. Tennessee also has a statute providing
`
`public school students, teachers, and employees with a cause of action against a school that
`
`“‘intentionally allow[s] a member of the opposite sex to enter [a] multi-occupancy restroom or
`
`changing facility while other persons [are] present.” [Id. at ¶ 98].9 In contrast, the Department’s
`
`
`8 Similarly, Plaintiffs Alabama, Arkansas, Idaho, and Montana have enacted laws providing that designations for
`school-sponsored athletic activities must be determined by biological sex. [Doc. 1 at ¶ 99].
`9 Similarly, Plaintiffs Nebraska, Oklahoma, and West Virginia have enacted laws that provide for sex-separated
`facilities in the educational and employment contexts and prohibit members of the opposite sex from using those
`facilities. [Id.].
`
`
`12
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 12 of 47 PageID #: 1953
`
`

`

`Fact Sheet notes that students should be allowed to use the bathroom that aligns with their gender
`
`identity, and the EEOC’s Technical Assistance Document provides that covered employers must
`
`allow an individual to access a bathroom, locker room, or shower that corresponds to their gender
`
`identity. [Docs. 1-4, 1-5].
`
`
`
`At a minimum, Defendants’ guidance appears to deem conduct required by Plaintiffs’
`
`state laws to be unlawful sex discrimination under federal law. And, because Plaintiffs are
`
`subject to Titles VII and IX, and are thus objects of the guidance, Defendants’ guidance directly
`
`interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws.
`
`Plaintiffs cannot continue regulating pursuant to their state laws while simultaneously complying
`
`with Defendants’ guidance.
`
`
`
`Additionally, Plaintiffs claim that they are currently injured by Defendants’ guidance
`
`documents, as the guidance puts substantial pressure on Plaintiffs to change state laws.10 Plaintiffs
`
`have identified a conflict between Defendants’ guidance and what their state laws require, and the
`
`guidance applies to Plaintiffs. Defendants have vowed to enforce these statues consistent with the
`
`challenged guidance, and Defendants do not dispute that an enforcement action puts Plaintiffs at
`
`risk of losing substantial federal funding. Defendants have the power and ability to investigate
`
`“sex discrimination” and to enforce the guidance against Plaintiffs, and Defendants have not
`
`disavowed doing so. Therefore, as it currently stands, Plaintiffs must choose between the threat of
`
`legal consequences—enforcement action, civil penalties, and the withholding of federal funding –
`
`or altering their state laws to ensure compliance with the guidance and avoid such adverse action.
`
`As other courts have recognized, being left to such an untenable choice inflicts substantial pressure
`
`on Plaintiffs to change their state laws—an intrusion sufficient to constitute an injury for standing
`
`
`10 Plaintiffs alleged this injury in their Complaint and further developed their argument regarding this injury during
`oral argument. [Doc. 1 at ¶¶108-109].
`
`13
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 13 of 47 PageID #: 1954
`
`

`

`purposes. Supra at n.7.
`
`
`
`Defendants argue that Plaintiffs’ alleged interference with their sovereign authority to
`
`create and enforce a legal code cannot be reconciled with the Supreme Court’s decision in
`
`Massachusetts v. Mellon, which explained that Article III jurisdiction cannot be based upon
`
`“abstract questions…of sovereignty.” [Doc. 48 at 29]. (citing 262 U.S. 477, 485 (1923)). In
`
`Mellon, the Supreme Court rejected Massachusetts’s assertion that a sovereign state has an
`
`absolute right to sue on its own behalf. Id. at 484-85. Massachusetts sued to challenge the
`
`constitutionality of the Maternity Act, arguing the statute was an improper usurpation of power
`
`reserved to the states. Id. Id. at 480-81. The Court first highlighted that the powers of the states
`
`were not actually invaded, as the Act “imposes no obligation but simply extends an option which
`
`the state is free to accept or reject.” Id. at 480-82. The Court then noted that the dispute did not
`
`involve “rights of person or property,” “rights of dominion over physical domain,” or “quasi
`
`sovereign rights actually invaded or threatened,” but instead involved “abstract questions of
`
`political power, of sovereignty, of government.” Id. at 485. Thus, because “[n]o rights of the state
`
`falling within the scope of the judicial power” were presented for adjudication, Massachusetts
`
`could not invoke the power of the judiciary to pass judgment on the validity of the Maternity
`
`Act. Id.
`
`
`
`The Sixth Circuit recently expounded on Mellon, clarifying that “[t]here is [] no Mellon
`
`bar against the plaintiff states’ suit in their sovereign and quasi-sovereign capacities.” Kentucky
`
`v. Biden, 23 F.4th 585, 597-98 (6th Cir. 2022). So, in other words, when sovereign and quasi-
`
`sovereign interests are actually invaded or threatened, a State may sue the United States to
`
`vindicate its own rights. Id. at 596-98 (concluding that “Mellon likely does not bar the state
`
`plaintiffs’ claims to the extent they assert sovereign and quasi-sovereign interests”); see also
`
`14
`
`Case 3:21-cv-00308-CEA-DCP Document 86 Filed 07/15/22 Page 14 of 47 PageID #: 1955
`
`

`

`Massachusetts, 127 S. Ct. at 1455, n.17 (2007) (citing Georgia v. Pennsylvania R. Co., 324 U.S.
`
`439, 447 (1945) (“[T]here is a critical difference between allowing a State ‘to protect her citizens
`
`from the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to
`
`assert its [own] rights under federal law (which it has standing to do).”)
`
`
`
` Here, unlike in Mellon, Plaintiff States have identified a specific sovereign interest at
`
`stake—the power to create and enforce a legal code—and further identified plausible conflicts
`
`between Defendants’ guidance documents and their own state laws to demonstrate that their
`
`sovereign interests are actually invaded or threatened. As such, the Court is asked to resolve a
`
`“concrete” controversy, rather than an “abstract question[]…of sovereignty” like Defendants
`
`suggest.
`
`
`
`Further, Defendants contend Plaintiffs’ standing argument is undermined by the Sixth
`
`Circuit’s decision in Ar