We have been tracking the development of litigation concerning rights, obligations, and duties with regard to transgender students as cases unfold across the country.
Earlier this summer, Texas and twelve other states challenged the propriety and legality of a joint Dear Colleague Letter (DCL) issued by the U.S. Department of Justice and U.S. Department of Education on May 13, 2016 which interpreted Title IX of the Education Amendments of 1972 (Title IX) to extend antidiscrimination protections to transgender students. On Wednesday October 19, 2016, a federal district court judge for the Northern District of Texas, Judge Reed O’Connor, issued an order clarifying the scope of the preliminary injunction previously granted in the court case challenging the legality of the DCL in Texas v. U.S., No. 7:16-cv-00054-O (N. D. Tex. May 25, 2016). The injunction is now being appealed to the 5th Circuit Court of Appeals by the defendant federal agencies.
Judge O’Connor issued this most recent order in response to a motion for clarification filed by the defendant federal agencies seeking further explanation of the scope of the district court’s preliminary injunction ruling, issued on August 21, 2016 as well as its interpretation.
Issues on which Federal Agencies sought Clarification:
Specifically, the federal agencies sought clarification from the court as to five issues:
- whether the DCL guidelines were enjoined in total or whether they were severable;
- whether the injunction applies to Title VII investigations, particularly as it applies to workplaces where school teachers or school staff may or must use the same intimate facilities as students;
- whether the injunction applied to the Occupational Safety and Health Administration (OSHA), or Department of Labor (DOL) activities;
- whether the preliminary injunction prevents government agencies from performing their statutory duties to prevent discrimination; and
- the geographic scope of the injunction.
Court’s Response on Geographic Scope:
The court confirmed that it intended the injunction to apply nationwide.
Court’s Response on Applicability to other Federal Agencies:
The court went on to note that the injunction does not enjoin the EEOC from fulfilling its statutory duties, nor does it affect programs combating discrimination or a school’s obligation to investigate and remedy complaints of sexual harassment, sex stereotyping, and bullying. Further the injunction does not affect any the defendant federal agencies’ statutory duties under Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, or Title II of the Americans with Disabilities Act of 1990.
Court’s Response on other Issues:
The court requested additional briefing from the parties with regard to the issues of applicability to enforcement and investigations under the auspices of Title VII, OSHA, and DOL, and whether the guidelines in the DCL are severable.
The injunction is currently being appealed to the 5th Circuit Court of Appeals. We will continue to track the progress of this case, as it will have national implications pertaining to the rights of transgender students and employees.
- The injunction applies only in the context of intimate facilities (i.e., restrooms and locker rooms). Thus, it does not prevent the defendant agencies from investigating other types of discrimination complaints related to transgender individuals.
- The judge left open the question of whether the injunction affects DOL or other federal agencies in the enforcement of similar policies with regard to transgender employees, seeking additional briefing from the parties on these issues.
- Connecticut state law protects transgender and gender nonconforming students and employees from discrimination. Accordingly, the nationwide injunction does not affect the obligations of Connecticut public school districts, colleges and universities to provide transgender students access to intimate facilities such as restrooms and locker rooms, or such institutions’ obligations to take other appropriate measures to protect the rights of transgender individuals in public educational institutions.