• Court Decisions Could Frustrate Obama Administration Efforts to Protect Transgender Students, Employees
  • September 28, 2016 | Authors: Thomas Dorer; Mariah H. McGrogan; Michelle E. Phillips
  • Law Firms: Jackson Lewis P.C. - Hartford Office; Jackson Lewis P.C. - Pittsburgh Office; Jackson Lewis P.C. - White Plains Office
  • A flurry of judicial activity has surrounded the Obama Administration’s efforts to provide legal protection to transgender individuals by extending protection against sex discrimination to cover gender identity under Title IX of the Education Act of 1972 and Title VII of the Civil Rights Act of 1964.

    The U.S. Departments of Justice and Education announced, in a joint May 13, 2016, Dear Colleague Letter (“DCL”), that they would “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”

    The DCL offered guidance on a range of issues, including access to restrooms, locker rooms, and similar facilities, equal participation in educational programs and activities, and recordkeeping and privacy. (See our article, U.S. Departments of Justice and Education Issue ‘Significant Guidance’ on Transgender Rights under Title IX.) The U.S. Equal Employment Opportunities Commission has applied the same standards under Title VII.

    However, a ruling from a Texas court and a stay by the U.S. Supreme Court (on a decision from a U.S. Court of Appeals for the Fourth Circuit in Richmond) cast uncertainty over the Administration’s enforcement of the guidance, especially as it relates to access to restrooms and other facilities that match a student’s gender identity, rather than assigned sex at birth.

    Texas Decision
    On August 21, Judge Reed C. O’Connor of the Northern District of Texas issued a nationwide preliminary injunction against enforcement of the guidance in a lawsuit filed by Texas and 12 other states.

    While the exact scope of the injunction is unclear, the court focused on the DCL’s guidance on access to restrooms and other facilities which match gender identity, rather than sex assigned at birth (referred to by the court as “biological sex”). The court determined the plaintiffs had presented facts sufficient to support a ruling that, by issuing the DCL, the federal agencies had violated the Administrative Procedures Act by foregoing the Act’s notice-and-comment requirements for new regulations, which the court believed contradicted Title IX and its implementing regulations. The court rejected the DOJ’s and DOE’s argument that the DCL was merely interpretive, and concluded the agencies failed to follow the procedural requirements of the Act.

    While ostensibly a ruling on the applicability of the Act, the court’s opinion delved into substantive legal analysis of the DCL, which the DOJ and DOE argued was intended to resolve ambiguity by establishing that a transgender student’s “sex” under Title IX corresponds to gender identity rather than assigned sex at birth. The agencies argued that their interpretation was owed judicial deference as a legitimate interpretation consistent with the statute and regulations. The court rejected this, concluding that “it cannot be disputed that the plain meaning of the term sex as used in [Title IX and its implementing regulations] ... meant the biological and anatomical differences between male and female students as determined at their birth.” The court stated that the federal agencies had “manufactured an ambiguity so they [could] unilaterally change the law to suit their policy preferences.”

    The opinion purports to enjoin the federal government from enforcing the guidance in the DCL throughout the country, although the lawsuit was brought by only 12 states. In addition, while the plaintiff’s suit and court’s opinion focused almost exclusively on the DCL’s discussion of facilities, the injunction could be read to apply to all of the DCL.

    Because of these and other issues, on September 12, 2016, the DOJ and DOE filed a motion seeking clarification of the court’s order. The court’s ruling is expected in early October. It could have significant impact on other federal lawsuits addressing the DCL.

    4th Circuit Case
    In G.G. ex Rel. Grimm v. Gloucester County Public School Board, 822 F.3d 709 (4th Cir. 2016), a transgender male student challenged under Title IX a school district’s policy barring him from using the boy’s bathroom. The Fourth Circuit Court of Appeals deferred to the DOE’s interpretation that Title IX and related regulations require schools to permit transgender students to use bathrooms congruent with their gender identity. Contrary to Texas Judge O’Connor’s opinion, the Fourth Circuit relied on the DCL, finding that Title IX was ambiguous as applied to transgender students, and therefore, the federal agencies’ interpretation should be given deference.

    On August 3, the Supreme Court voted 5 to 3 to temporarily stay an order from the Fourth Circuit Court of Appeals while it decides whether to accept an appeal from the defendant school board. The school board argues, in part, that the Fourth Circuit gave inappropriate deference to the DCL and that Title IX and its implementing regulations do not extend protections to transgender students.

    North Carolina Case
    Following the Fourth Circuit’s opinion upholding the DCL’s interpretation of Title IX, on August 26, Judge Thomas D. Schroeder of the U.S. District Court for the Middle District of North Carolina (which is part of the Fourth Circuit) barred the University of North Carolina from enforcing North Carolina’s Public Facilities Privacy and Security Act, or HB-2. The state law invalidated a Charlotte ordinance that extended certain rights to the gay and transgender communities, including the right to use restroom facilities aligned with the individual’s gender identity. HB-2 also instituted statewide definitions of the classes of people protected from discrimination, which includes race, religion, color, national origin, age, handicap, or biological sex as designated on a person’s birth certificate. (See our article, North Carolina Legislation Removes LGBT Protections and Possible Wrongful Termination Claims.)

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    The legitimacy of the DOJ’s and DOE’s interpretation of Title IX in the DCL remains in doubt, with opposite conclusions reached by two federal district courts, one of which purports to impose a nationwide preliminary injunction on application of the DCL, and with a key federal appeals court ruling stayed from enforcement while the U.S. Supreme Court decides whether or not to accept the case for appeal.

    While the legitimacy of the DCL guidance moves through the courts, schools, colleges, and universities should continue to review and, as appropriate, update their harassment and transgender policies with careful consideration to the DCL, which may ultimately be upheld as a valid interpretation warranting judicial deference. Schools, colleges, and universities also should train school administrators, human resources, and faculty on how best to comply with transgender student rights.