Federal District Court in Texas Issues Preliminary Injunction Halting Federal Government’s Enforcement of Transgender Discrimination Guidance
August 25, 2016

By Mary S. Gerbig

A new development has arisen in the current evolution of transgender discrimination law applicable to school districts and other entities receiving federal money throughout the country. The latest turn involves a Texas federal district judge’s decision to issue a preliminary injunction against the federal government’s enforcement of its May 20, 2016 guidance interpreting sex discrimination as including transgender discrimination. The lawsuit initiated by the State of Texas (Wisconsin and 12 (twelve) other states joined) is directed at the U.S. Department of Education and U.S. Department of Justice and is based on the May 20, 2016 transgender guidance.

The Texas judge’s preliminary injunction was based upon three considerations:

  1. the federal government did not follow the notice and comment rulemaking process under the Administrative Procedures Act when issuing its guidance, when it should have done so because the guidance was legislative and substantive in nature, as opposed to a mere expression of policy or interpretation;

  2. the text or language of the law in Title VII and Title IX and its regulations was not ambiguous as the plain meaning of term “sex” means biological and anatomical differences at birth and that separate, comparable facilities between the sexes is permitted under the law; and

  3. the guidance is only persuasive due to the lack of ambiguity in the law and, therefore, the guidance is not entitled to deference making it legally binding.

The federal government acknowledged in the lawsuit that its guidance was merely an expression of the agencies’ views as to what the law requires, is not legally binding and does not provide any new source of liability or legal requirements for public agencies. The district judge took note of all of these admissions and incorporated them into his decision, and further concluded that the injunction should have nationwide application. The extent of the decision’s application remains an open legal question which may be answered soon, as the same issue is pending at the U.S. Supreme Court.

Our August 8, 2016 legal alert discussed the U.S. Supreme Court’s decision to temporarily allow a Virginia School Board to ban a student born as a girl from using the boy’s bathroom in order to preserve the status quo while the Court considers whether to hear the merits of the case. Since that alert, the Virginia School Board asked the Court for an extension of its August 29, 2016, deadline to file its appeal. Their request was due in part to the amount of time the attorneys have had to spend defending the State of North Carolina and its transgender bathroom law known as HB-2. Supreme Court Chief Justice John Roberts denied the School Board’s request without explanation thus requiring the appeal to be submitted by August 29. Assuming the appeal is timely filed, the Court will then decide whether to hear the appeal, presumably sometime this fall.

In the meantime, school districts and other entities receiving federal money should monitor ongoing legal developments for future compliance and consider the joint guidance from the Department of Education and the Department of Justice in making local decisions pertaining to transgender matters. As this continues to be an evolving body of law due to the breadth of current litigation, please contact your Davis & Kuelthau, s.c. attorney or the author, Mary S. Gerbig, at 920.431.2242 / mgerbig@dkattorneys.com with any questions.

 

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