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AG Nessel Urges Appellate Court to Reject Attack on Federal LGBTQ Anti-Discrimination Protections

LANSING – Michigan Attorney General Dana Nessel joined a coalition of 19 other attorneys general, led by California, in an amicus brief in Tennessee v. Department of Education in support of the rights of the more than 20 million lesbian, gay, bisexual, and transgender (LGBTQ) Americans to live, work, and pursue education free from discrimination. Under U.S. Supreme Court precedent, federal protections against sex-based discrimination necessarily guard against discrimination on the basis of sexual orientation and gender identity in both schools and the workplace. However, in a challenge to recent guidance issued by the U.S. Department of Education and the U.S. Equal Employment Opportunity Commission (EEOC) currently before the U.S. District Court of Appeals for the Sixth Circuit, a group of states led by Tennessee seek to undermine the established interpretation of the law and its protections against LGBTQ discrimination. In the friend-of-the-court brief, the coalition highlights the pervasive harms of such discrimination and urges the appellate court to reject the current attack on LGBTQ rights should the court address the substantive challenge raised by the plaintiffs. 

"It is unfortunate that some states still seek to deny the LGBTQ community the protections they have fought for and won over the years," Nessel said. "Rather than attempting to strip their residents of protections, states should be ensuring that each person has the same opportunity to live a full and productive life regardless of gender, gender identity, or sexual orientation. The court challenge that Tennessee is leading is contrary to established law and contrary to the challenging states' own best interests. LGBTQ residents make significant contributions to their communities when they have the freedom and liberty to do so. I am proud to stand with my colleagues in supporting the interpretation of Title VII and Title IX in the guidance issued by the U.S. Department of Education and EEOC."  

Discrimination on the basis of sex against LGBTQ individuals is especially damaging in employment and education, the contexts addressed by the two guidance documents at issue in this appeal. When employees do not have legal protection from anti-LGBTQ discrimination — including protected access to bathrooms, the ability to dress consistent with their gender identities, and protection against pronoun misuse contributing to a hostile work environment — these employees and the states in which they live and work incur significant harms. Such harms can be economic, physical, and psychological in nature. Discrimination against LGBTQ individuals also directly threatens the interests of states. Workers who lose their employment due to discrimination are often forced to seek public assistance, as are individuals unjustly deprived of educational opportunities. As a result, states expend greater sums to ensure that victims of discrimination are supported, and the states lose out on tax revenue.  

Accordingly, the coalition states have a strong interest in ensuring that federal laws intended to protect LGBTQ individuals from discrimination are recognized and enforced. The coalition states rely on Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments of 1972 (Title IX) to protect their residents, workers, and students from discrimination. The guidance documents at issue in this case correctly effectuate these statutes’ mandates, in turn making them more effective and of greater benefit to the states and their residents. The common experience of the coalition states shows that protecting LGBTQ residents, workers, and students from discrimination on the basis of sex dramatically improves economic, psychological, health, employment, and educational outcomes for these individuals, yielding broad benefits, without compromising privacy or safety, or imposing significant costs. 

In the amicus brief, the coalition asserts: 

  • LGBTQ students and employees face myriad concrete harms that the challenged guidance is meant to prevent and redress; 
  • The guidance issued by the U.S. Department of Education and Equal Employment Opportunity Commission reflects clear precedent interpreting Title VII and Title IX; 
  • If the appellate court reaches the plaintiff states’ substantive challenge to the guidance, it should uphold that guidance; and 
  •  Amici states have enacted numerous laws similar to the challenged guidance, providing important societal benefits without compromising privacy or safety. 

In filing the amicus brief, AG Nessel joins the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Washington.  

A copy of the amicus brief is available here

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