Whether a notice-and-comment violation, on its own, can establish Article III standing for a regulated entity within the applicable zone of interests

QUESTIONS PRESENTED The Fair Housing Act (FHA) prohibits sex-based discrimination in housing policy or speech, and it applies to college dorms. As recently as 2020, the Department of Housing and Urban Development (HUD) denied that “sex” in the FHA’s non-discrimination provision covers gender identity, allowing schools like Petitioner College of the Ozarks to assign dormitories based on biological sex and to communicate that policy to its students. All that changed in 2021. In response to an Executive Order from President Biden declaring that the FHA now prohibits discrimination “on the basis of gender identity,” HUD issued a Directive mandating “full enforcement” of this new prohibition. President Biden characterized the Directive as a “rule change” that “finally” enforced the FHA. HUD declined to provide notice and comment, as both the FHA and APA require. But when the College challenged the Directive, the lower courts dismissed, holding that the College suffered no Article III injury because there was no imminent threat of enforcement and the College had not articulated a concrete injury. The questions presented are: 1. Whether a notice-and-comment violation, on its own, can establish Article III standing for a regulated entity within the applicable zone of interests, as the Fifth, Sixth, Ninth, D.C. and Federal Circuits have held, or whether an additional injury is required, as the Eighth Circuit held here. 2. Whether a regulated entity has Article III standing to challenge an illegal regulation where the entity (a) arguably falls with the rule’s plain scope, and (b) there is a risk of enforcement.