By: Brittany Flaherty Theis
On August 21, 2016, Judge O’Connor of the Northern District Court of Texas issued a sweeping order (the “Order”) that grants the preliminary injunction requested in a lawsuit challenging the Department of Education and Department of Justice’s Dear Colleague Letter regarding accommodations for transgender students (the “Letter” or the “Guidelines”). The plaintiffs in that suit include the following states: Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, Georgia, Mississippi, and Kentucky, plus the Governor of Maine, the Arizona Department of Education, and two school districts (the “Plaintiffs”). The defendants include the Department of Education (“DOE”), the Department of Justice (“DOJ”), the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and various agency officials (the “Defendants”).
In its Order, the Court stated that the case presented the “difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school.” However, the Order does not resolve that policy issue. Rather, the Court determined that before it was the issue of whether the Defendants failed to follow the proper legal procedures before issuing the Guidelines, and if they failed to do so, whether the Guidelines needed to be suspended until the Defendants followed the proper legal procedure, or Congress acts.
The Order describes the Parties’ arguments as they relate to Title VII, Title IX, and the Guidelines, and analyzes the requirements of the Administrative Procedure Act and the standards for granting preliminary injunctions. The Court held that it had jurisdiction over the lawsuit and that the “Defendants failed to comply with the Administrative Procedures Act by: (1) foregoing the Administrative Procedures Act’s notice and comment requirements; and (2) issuing directives which contradict the existing legislative and regulatory texts.” The Court, therefore, granted Plaintiffs’ motion for a preliminary injunction.
Specifically, the Order states that “Defendants are enjoined from enforcing the Guidelines against Plaintiffs and their respective schools, school boards, and other public, educationally-based institutions. Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendant’s interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex. Additionally, Defendants are enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order. All [P]arties to this cause of action must maintain the status quo as of the date of issuance of this Order and this preliminary injunction will remain in effect until the Court rules on the merits of this claim, or until further direction from the Fifth Circuit Court of Appeals.”
The Court determined that the injunction should apply nationwide. However, because Section 106.33 of Title IX’s implementing regulations, regarding the provision of separate toilets, locker rooms, and shower facilities on the basis of sex, is permissive, states that authorize schools to define sex to include gender identity for purposes of providing separate restrooms, locker rooms, showers, and other intimate facilities will not be impacted by the injunction. The Order explains that as a practical matter, the injunction only impacts those states whose laws direct that separate restrooms, locker rooms, and showers be provided on the basis of sex.
Headlines throughout the country claim such things as the Order blocks the transgender rules of the Federal government. Our review of the Order, however, shows that the Order is not as simple as those claims. The impact of the Order depends on the state within which a school district is located, the actions complained of or being considered, and the basis for those complaints or actions. The attorneys at Whitt Law are watching this area of law as it rapidly evolves. We advise school districts to address requests for accommodation on a case-by-case basis and are available to advise school districts of their options based on the status of the law regarding transgender students. Please contact Whitt Law Attorney Brittany Flaherty Theis if you have questions about the Order described above, or need advice regarding accommodations within your school district.
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