By: Brittany Flaherty Theis

Multiple developments have occurred in pending litigation involving the topic of the Department of Education and Department of Justice’s Dear Colleague Letter regarding accommodations for transgender students, including the United States Supreme Court taking one of the cases on appeal. The Supreme Court grant of certiorari and an Order issued by a judge in the Northern District of Texas are discussed below.

Gloucester County School Board v. G.G.
On October 28, 2016, the Supreme Court of the United States granted a petition for a writ of certiorari, agreeing to review two out of three questions presented by the petitioners. Specifically, the Supreme Court will consider:

  • If Auer is retained, should deference extend to an unpublished agency letter (the Dear Colleague Letter regarding accommodations for transgender students) that, among other things, “does not carry the force of law and was adopted in the context of the very dispute in which deference was sought?”
  • “With or without deference to the agency, should the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?”

In April 2016, the Fourth Circuit issued an Order that required a Virginia school district to allow a transgender male student to use the sex-segregated restrooms for males, which was contrary to the school district’s policy, finding that the Department of Education’s interpretation of its Title IX regulations was entitled to deference under Auer v. Robbins. In August 2016, the Supreme Court issued a preliminary injunction staying the effect of that ruling. That stay remains in effect until the Supreme Court issues its decision in this appeal, which means the school board’s policy requiring bathroom use based on biological sex remains in effect until that time. (We discussed the Supreme Court’s preliminary injunction in a prior blog post.)

State of Texas et al. v. United States of America
On October 19, 2016, a United States District Judge in the Northern District of Texas issued an order addressing a Motion for Clarification filed by the Defendants in the case of State of Texas et al. v. United States of America. The Order affirms that the preliminary injunction the Court issued on August 21, 2016 (and discussed in a prior blog post) applies nationwide and states that the injunction is limited to the issue of access to intimate facilities. In its Order, the Court explained:

“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate. Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide. Defendants are a group of agencies and administrators capable of enforcing their Guidelines nationwide, affecting numerous state and school district facilities across the country. Should the Court only limit the injunction to the plaintiff states who are a party to this cause of action, the Court risks a ‘substantial likelihood that a geographically-limited injunction would be ineffective.’”

(citations omitted). The Court reiterated that those states who do not want to be covered by the injunction can avoid its coverage through a state law recognizing the permissive nature of Title IX’s implementing regulations on the issue. The injunction only impacts states with laws that direct separation. (Our prior post explained that 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, rather than mandatory.)

At oral argument, the parties agreed that Defendants could offer textual analyses of Title IX and VII in cases where the federal government and its agencies are defendants, and Defendants may comply if the United States Supreme Court or any Circuit Court requests that Defendants file amicus curiae briefs so the Court did not address this issue. Additionally, the Court also clarified the reach of the preliminary injunction when it stated that Defendants are “simply prevented from using the Guidelines to argue that the definition of ‘sex’ as it relates to intimate facilities includes gender identity. The Court’s preliminary injunction neither affects the EEOC’s fulfillment of its statutory duties, nor Defendant’s ability to enforce anti-discrimination statutes nationwide.”

Notably, the Court ordered additional briefing on whether the Defendants’ Guidelines are enjoined in total or whether the principal of severability applies to them, whether Title VII is implicated by the injunction, and whether the injunction applies to OSHA or Department of Labor activity. Those issues will remain outstanding until the Court issues an order following the parties filing of briefs regarding those questions. The last of the parties’ briefs were due by October 28, 2016.

The status of the law regarding accommodations for transgender students is still in flux and rapidly evolving. Whitt Law advises school districts to handle requests for accommodations on a case-by-case basis and to contact legal counsel to discuss options available to the district to address such requests, as well as any policies or practices the district might have. Please contact Whitt Law Attorney Brittany Flaherty Theis if you have any questions about the cases described above, or need advice regarding accommodations within your school district.

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