Texas AG Wins Temporary Halt to Obama Order Giving Trans Students Access to Bathrooms Nationwide

Texas Republican Governor Ken Paxton, a Tea Party favorite. | TEXASATTORNEYGENERAL.GOV

Texas Republican Attorney General Ken Paxton, a Tea Party favorite. | TEXASATTORNEYGENERAL.GOV

A federal district judge in Wichita Falls, Texas, has issued a nationwide preliminary injunction against the Obama administration’s requirement that schools allow transgender students to use restroom facilities consistent with their gender identity – in a ruling that straightjackets current government efforts to advance that policy.

Judge Reed O’Connor’s August 22 ruling is directed at a joint “Dear Colleague” letter from the Department of Justice and the Department of Education sent to all the nation’s schools subject to the 1972 Education Amendments Act’s Title IX. That May 13 letter, spelling out how the government is now interpreting federal statutes forbidding sex discrimination, advised schools that failing to allow transgender students access to facilities consistent with their gender identity would violate Title IX, endangering their eligibility for funding from the DOE.

The letter from the DOE and the DOJ followed shortly on a ruling from the Richmond-based Fourth Circuit Court of Appeals holding that federal courts should defer to the administration’s posture, which had previously been articulated in filings in a Virginia lawsuit. The case in Virginia involves the right of Gavin Grimm, a transgender boy, to use boys’ restroom facilities at his Gloucester County high school. The ACLU filed the case on Grimm’s behalf after his school district adopted a rule forbidding students from using single-sex-designated facilities inconsistent with their “biological sex” as identified on their birth certificates.

That rule is similar to the one adopted by North Carolina in its notorious H.B.2, which is itself now the subject of several federal lawsuits.

US court bars enforcement of Departments of Education, Justice Title IX gender identity bias interpretation

After the Fourth Circuit ruled, Robert Doumar, the federal district judge hearing Grimm’s case, issued a preliminary injunction requiring that he be allowed access to the boys’ restrooms while the case is pending. On August 3, however, the Supreme Court voted 5-3 to grant the school district’s request for a stay of Doumar’s injunction.

Judge O’Connor, in his Texas injunction, prominently mentioned the Supreme Court’s action, commenting that the case presents a question that the high court may be resolving this term.

The case was brought by Texas’ Republican attorney general, Ken Paxton, who took the lead in a joint lawsuit brought by 11 states challenging the May 13 DOE/ DOJ position. Paxton specifically aimed to bring the case before O’Connor, a George W. Bush appointee who previously issued a nationwide injunction against the Obama administration’s policy of deferring deportation of undocumented residents without criminal records and had also ruled to block an Obama administration interpretation of the Family and Medical Leave Act favoring family leave for gay employees to care for same-sex partners. Paxton enlisted a small school district in north Texas, Harrold Independent School District – one that has no transgender students but adopted a restrictive restroom access policy anyway – as a co-plaintiff in order justify filing it in the Wichita Falls court.

At the heart of the controversy here and elsewhere is the Obama administration’s view that federal laws banning sex discrimination should be broadly interpreted to ban discrimination based on gender identity and sexual orientation – a position it adopted officially in a series of rulings by the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. The EEOC’s interpretation is in line with several federal circuit court decisions in cases brought by transgender plaintiffs challenging discrimination under the Violence against Women Act, the Fair Credit Act, and Title VII.

In the initial years after Title VII was enacted, the EEOC and other federal agencies repeatedly rejected this broad interpretation, but transgender people began to make progress after the Supreme Court, in a case brought by a woman denied partnership at Price Waterhouse, ruled in 1989 that sex-stereotyping by employers – disadvantaging employees who failed to comply with the employer’s stereotyped view of how men and women should act, groom, and dress – could be considered evidence of sex discrimination.

Building on this growing body of rulings from courts as well as the EEOC, the DOE first expressed its new posture formally last year in a letter it sent in connection with a restroom access lawsuit involving a transgender student against an Illinois school district, participated in negotiating a settlement in that case under which the school district opened up such access, and then began to take a more active approach as more lawsuits emerged. When the Fourth Circuit ruling became the first from an appellate panel agreeing that the DOE/ DOJ position is a reasonable interpretation of the existing regulation that allows school districts to provide separate facilities for boys and girls so long as they are comparable, the administration was ready to push the issue nationwide.

Since that regulation does not specifically resolve the question of access for transgender students, the DOE and the DOJ argue that their position is a reasonable interpretation, given its consistency with the EEOC’s position on workplace discrimination and rulings that have emerged from the federal courts under other sex discrimination statutes.

According to Supreme Court precedent, agency interpretations of ambiguous regulations should receive judicial deference if they are reasonable.

The May 13 letter provoked widespread backlash, leading not only to the suit brought in Texas by Paxton, but to another initiated by Nebraska Attorney General Doug Peterson, also a Republican, leading a coalition of nine other states in the federal district court there.

Both cases rely heavily on an argument first proposed by Alliance Defending Freedom (ADF), an anti-gay Christian public interest law firm, in a lawsuit it brought in May on behalf of parents and students challenging the settlement of the Illinois case, and a copycat lawsuit filed by ADF in North Carolina.

The plaintiffs argue that the DOE/ DOJ position is not technically an “interpretation” of existing Title IX requirements, but rather a new “legislative rule” that imposes legal obligations and liabilities on school districts. As a result, they argue, it cannot simply be adopted in a “guidance” or a “letter” but must go through the formal process for adopting new regulations under the federal Administrative Procedure Act. That process involves publication of the proposed rule in the Federal Register inviting written comments from the public, perhaps one or more public hearings around the country to receive more feedback, and then publication of a final rule, which would be subject to judicial review in a case filed in a US Court of Appeals.

The plaintiffs also contend that this new rule is not a legitimate interpretation of Title IX, because Congress did not contemplate the question of transgender access to restrooms back in the early 1970s.

In his August 22 ruling, O’Connor concluded that the plaintiffs met their burden of showing they would likely succeed on the merits of their claim, which is necessary to support a preliminary injunction. In doing so, he rejected the Fourth Circuit’s conclusion that the existing statute and regulations are ambiguous and so subject to administrative interpretation. The legislative history, he found, makes clear that Congress was not contemplating outlawing gender identity discrimination when it passed sex discrimination laws more than four decades ago. The existing regulation allowing schools to provide separate facilities for boys and girls, he concluded, was intended to protect student privacy against being forced to be undressed in front of students of the opposite sex.

Also in support of his preliminary injunction, O’Connor found that without it school districts would face the burden of either changing their facilities access policies or potentially losing federal money. On that point, he noted the Obama administration’s suit against North Carolina seeking to block the facilities access restrictions in H.B.2.

The administration argued that any preliminary injunction should apply only to the states in the Fifth Circuit, which has jurisdiction over the federal district court in Wichita, even though the co-plaintiffs include states in several other circuits, but O’Connor rejected this argument, agreeing with the plaintiffs that the injunction should be nationwide. Given the terms of Title VII, he noted, states willing to provide transgender students access to the restrooms corresponding to their gender identity are free to do so.

O’Connor ordered the government – and specifically the Labor Department and the EEOC, as well as the DOE and DOJ – not to enforce its guidelines on restroom access or to carry out any investigations based on the interpretation underlying them and to “maintain the status quo” until the merits of the case are resolved. Since the injunction mentions only Title IX, it is questionable whether it would affect the ability of the EEOC or the Labor Department to pursue gender identity employment discrimination cases under Title VII.

O’Connor apparently concluded that the Supreme Court’s decision to stay the injunction in the Gavin Grimm case from Virginia suggests that school districts should not be required as a matter of federal law to allow transgender students access to facilities consistent with their gender identity unless and until there is a binding Supreme Court ruling to that effect.

Civil rights organizations that represent transgender plaintiffs immediately emphasized that the injunction was binding only on the federal government, not on private parties and organizations. Under the terms of the injunction, however, the federal agencies identified as defendants here are barred from joining such lawsuits as co-plaintiffs or amicus parties as long as the injunction remains in effect.