Sixth Circuit hears appeal over sex discrimination rule facing anti-trans challenges

The appeals court heard arguments over one of several Title IX rule challenges. Also: SCOTUS won't stop Friday's scheduled South Carolina execution.

A conservative-leaning three-judge panel of the U.S. Court of Appeals for the Sixth Circuit held arguments this week over one of the challenges to the Biden administration’s Title IX sex discrimination rule for schools.

The panel to hear arguments in several challenges to the rule appeared likely at least to narrow the injunction that currently blocks the entire rule from being enforced in the six states in this lawsuit. The most likely outcome, in that instance, would be for the injunction to be narrowed to cover only the provisions of the rule actually challenged by the states, but even that was uncertain from Wednesday’s arguments.

The Education Department’s rule has largely been challenged due to opposition to its protections for transgender students, although the rule itself encompasses a much broader range of issues — including addressing how schools respond to sexual assault and harassment allegations.

As I have reported extensively at Law Dork, the rule, which went into effect on August 1 and was promulgated under Title IX of the Education Amendments Act of 1972, is blocked in more than half of the states in the country, as well as at many schools in other states.

Another appeal is set to be heard by the far-right U.S. Court of Appeals for the Fifth Circuit on Monday, and a third appeal is set to be heard in the U.S. Court of Appeals for the Eleventh Circuit on December 18. In other words, yes, this is very much a contingent case.

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Read all of Law Dork’s coverage of challenges to the Title IX rule here.

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Wednesday’s arguments were in a case brought in Tennessee. In addition to Tennessee, the other Republican-led states who sued in this case were Kentucky and Ohio within the Sixth Circuit, as well as Indiana, Virginia, and West Virginia.

U.S. District Judge Danny Reeves enjoined the entire rule, despite the plaintiff states only challenging the three provisions in the rule addressing protections for transgender students — the definition of sex; the related definition of sex-based harassment; and a provision that prohibits trans-exclusive policies by asserting that such policies create more than “de minimus harm,” which is prohibited under the rule.

The Justice Department appealed, and the panel for that appeal consisted of Judges Eugene Siler Jr. (George H.W. Bush), Richard Griffin (George W. Bush), and Andre Mathis (Biden).

Mathis earlier sat on the motions panel that considered DOJ’s request that the appeals court block part of the district court’s injunction while the appeal was considered. The Sixth Circuit rejected that request, but Mathis dissented. Later, the U.S. Supreme Court also rejected DOJ’s stay request — in a confusing order that referenced how the Sixth Circuit would quickly be considering the appeal. On Wednesday, that appeal was heard.

Some of the 45-minute argument on Wednesday focused on the question of the scope of Reeves’s injunction, with both Mathis and Griffin expressing skepticism at the scope — and, from Griffin, even the states’ defense of that scope in their brief.

For his part, Siler — who is 88 years old — asked very few questions.

As to those provisions directly challenged, much of the argument focused on the importance of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, holding that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 protects against discrimination based on sexual orientation and gender identity in the workplace. Justice Neil Gorsuch wrote that decision for a 6-3 court. Chief Justice John Roberts and the the then-four Democratic appointees on the court joined him.

The question on Wednesday was what does that mean for Title IX?

Specifically, the lawyers — representing the Justice Department on one side and Tennessee (leading the states) and a group of Christian educators on the other — were asked repeated questions, mainly from Griffin, about differences between the 1964 workplace law and the 1972 education law.

The Justice Department argued that for purposes of deciding whether sexual orientation and gender identity should be protected under Title IX, language differences between the laws are essentially irrelevant. Tennessee’s lawyer attempted to argue, on the other hand, that the Title VII language barring discrimination “because of” sex essentially required less than Title IX ban of discrimination “on the basis” of sex.

Griffin focused extensively on this, asking why the word “the” in the Title IX language doesn’t mean that discrimination alleged under Title IX must be a “singular” cause, whereas, under Title VII, the “because of” language allows for multiple “factors” to be at play in causing the discrimination. David Peters, arguing for the Justice Department, said repeatedly that both amount to a “but for” causation requirement — a showing that, “but for” the person’s sex, they would not have faced discriminatory treatment.

Whitney Hermandorfer from the Tennessee Attorney General’s Office, argued for the states that “Bostock itself notes that differences in language, differences in structure, differences in precedent all matter,” leading the Sixth Circuit to — as Hermandorfer noted — previously rule that courts can’t “automatically import” Bostock’s interpretation into other statutes. In Title IX, though, she said the structure suggests it shouldn’t be imported at all.

This argument, however, requires, as I’ve written before, ignoring much of the broader language of Bostock, where Gorusch makes clear that where the text controls, the text controls:

Sex discrimination includes sexual orientation discrimination and gender identity discrimination. And while the application of that reality might change in different contexts, the reality of what sex discrimination is — as expressed in Bostock — does not.

In addition to that Bostock argument, Griffin also focused on an argument about whether the rule violated the Spending Clause’s requirement that there be a “clear statement” of any funding conditions.

As the Justice Department summed up its response to this argument — and, really, all of the arguments, as well as the district court’s underlying ruling in favor of the plaintiff states — in its brief, “Both holdings turned on the district court’s erroneous conclusion that the Rule rewrote Title IX’s definition of sex discrimination.”

In other words, if, as Bostock held, a sex discrimination ban in Title VII includes sexual orientation and gender identity discrimination, then applying that to Title IX would not be rewriting that law, either.

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Another South Carolina execution

The U.S. Supreme Court will not stop South Carolin’s planned Friday execution of Richard Moore.

In Moore’s request, his lawyers noted that he is the only person remaining on the state’s death row sentenced to death by an all-white jury.

“Moore is Black and the victim in his case was white,” his lawyers noted. “The State removed the only two otherwise qualified Black jurors through the exercise of its peremptory challenges.”

The petition asked whether the state properly applied Flowers v. Mississippi, a 2019 decision from the Supreme Court about a state’s racially discriminatory use of peremptory challenges.

There were no noted dissents to Thursday’s order rejecting Moore’s request.

Moore’s clemency petition remains pending, as Tiffany Tan of The Post and Courier reported.

Moore would be the state’s second execution since resuming executions last month and the 21st execution in the United States this year.