Recently, a federal district court in Texas sided with Texas and several other states that challenged federal guidance instructing schools to accommodate transgender students under federal anti-discrimination laws. The preliminary injunction, issued on the eve of a new school year, bars enforcement of guidance issued by the federal Department of Justice (DOJ) and Department of Education (DOE). Through the suit, thirteen states challenge the validity of the Dear Colleague letter (DCL) published jointly by both agencies in April. The DCL interprets Title IX of the Education Amendments of 1972 to encompass discrimination based on gender identity, including discrimination based on a student’s transgender status. Title IX was enacted to prevent discrimination on the basis of sex but does not explicitly include transgender individuals within its protective bounds. The DCL sets forth the agencies’ interpretations and schools’ obligations regarding transgender students and puts federal funding at risk where schools are not in compliance with the requirement that public schools accommodate transgender students’ asserted gender identities. The guidance is applicable to schools in receipt of Federal financial assistance at all educational levels, including colleges and universities as well as public school districts.
The suit challenged the DCL on multiple grounds, and prevailed at the preliminary injunction stage largely on its claim that the federal agencies involved issued the guidance without engaging in a proper period of notice and public comment– a procedural violation of the federal Administrative Procedure Act, which governs the development of regulations under federal statutory authority. Although the authoring agencies deemed the letter to be non-binding significant guidance, the district court held that because the guidance established and redefined legal obligations, it effectively qualifies as a legislative rule requiring additional procedural development prior to being relied upon as an effective standard.
Although the defendant federal agencies argued that the language of Title IX is sufficiently ambiguous to legitimize the agencies’ ability to interpret Title IX as protecting transgender students, the court disagreed, finding the guidance invalid on the grounds that the interpretations contradict the language of Title IX and its implementing regulations. Specifically, U.S. District Judge Reed O’Conner held Title IX to be unambiguous based on legislative history and a single implementing regulation at 34 C.F.R. § 106.33. The court found that the definition of “sex” as evinced by the statute and regulations was unambiguous and could only be interpreted as the biological and anatomical differences between male and female students as determined at their birth. Holding that only the foregoing definition was proper, the court precluded a definition of sex that would accommodate individuals asserting a gender identity at variance with their biological sex. Thus, the court held the agencies were not entitled to deference with regard to their interpretation of Title IX to include protection of transgender individuals.
Despite the purported national scope of the injunction, many states not party to the suit will remain relatively unaffected by the ruling. In Connecticut, for example, state law identifies gender identity or expression as a protected class for purposes of its anti-discrimination laws. Connecticut is one of fifteen states in the United States providing such explicit protections for transgender individuals; these protections apply both in the educational realm as well as in the employment context. In short, although the end result of the litigation remains to be seen, the injunction itself does not affect Connecticut or other similarly situated states affording protection to transgender individuals under state-level civil rights or anti-discrimination laws.