Title IX; Discrimination based on sexual orientation & gender identity in educational activities & programs that receive federal assistance; Bostock v Clayton Cnty; Enjoining enforcement of documents issued by the Department of Education (DOE); Likelihood of success on the merits of plaintiffs’ claims; Article III standing to challenge the documents; “Proprietary interest” standing; “Sovereign interest” standing; “Procedural rights” standing; Reviewability; Legal consequences; 34 CFR §§ 100.7(a), (d), 100.8(a), & (c); Whether Title IX provides an adequate alternative remedy making review under the Administrative Procedures Act (APA) inappropriate

In this interlocutory appeal, the court affirmed the district court’s order enjoining the implementation in the plaintiffs-States of defendant-DOE’s Title IX documents that provide the DOE would fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in educational activities and programs that receive federal assistance. The court concluded the States were likely to succeed on their claim that the documents are unlawful where they were not subject to notice and comment. In this pre-enforcement action, 20 States challenged the DOE’s issuance of three documents (referred to as the Documents) that state the DOE would fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in educational activities and programs that receive federal assistance. The States sought to block enforcement of the Documents, arguing that they were unlawful under the APA where they did not go through notice and comment. The district court entered a preliminary injunction, and the government filed an interlocutory appeal. The court first held that the States had standing to sue under the “proprietary interest” theory. It found that they established they would suffer “imminent” injury, that the injury was “traceable to the Documents[,]” and that it would “be redressed by a favorable ruling enjoining the enforcement of the Documents against them.” The court additionally found that they had standing under the “sovereign interest” theory and that they had “a substantial likelihood of standing under a procedural-rights theory.” It rejected the DOE’s argument that the Documents could not be reviewed as “‘final’ agency action,” determining they bound the DOE “to a legal position and create legal consequences.” The court noted “States will risk losing their federal funding if they continue to run their educational institutions in accordance with their own laws and policies. . . . This is a ‘severe’ penalty.” The court also rejected the arguments that “Title IX provides an adequate alternative remedy” to APA review and that “Title IX precluded pre-enforcement challenges to agency action.” Thus, the court held that that the States’ claims were reviewable given that this was a “final agency action where there is no other adequate remedy at law, and Title IX does not preclude this APA pre-enforcement suit.” It further concluded that the States were “likely to succeed on their claim that the Documents amount to a legislative rule and therefore must be set aside.”