On August 21, 2016, the United States District Court for the Northern District of Texas entered a preliminary injunction barring federal agencies from enforcing recent guidelines that call for schools, colleges, and universities to allow students to use sex-segregated facilities consistent with their gender identity. The injunction applies nationwide and specifically prohibits the Department of Education (ED) from initiating, continuing, or concluding any Title IX investigation that is based upon an institution’s alleged violation of ED’s gender-identity guidelines. The decision rejects the agencies’ position that Title IX and Title VII’s prohibition on “sex” discrimination includes a ban on gender-identity discrimination. The decision also declares that the agencies likely violated the federal Administrative Procedures Act (APA) by issuing gender-identity guidance without engaging in a public notice and comment process.

On May 13, 2016, ED and the Department of Justice (DOJ) jointly issued a Dear Colleague Letter (DCL) setting forth the agencies’ interpretation that Title IX prohibits discrimination on the basis of gender identity. The DCL interpreted the term “sex” in Title IX’s prohibition on sex discrimination to include discrimination based on gender identity—that is, adverse treatment based on a person’s internal sense of gender. Accordingly, the DCL advised that Title IX requires colleges and universities to investigate and remediate alleged harassment against students based upon their gender identity, transgender status, or gender transition. The DCL also advised that, to the extent a college or university provides sex-segregated activities and facilities—such as men’s and women’s restrooms, locker rooms, dorms, and athletics teams—the institution must allow students to participate in such activities and use such facilities consistent with their gender identity, even if that gender identity varies from that held by most persons of a given anatomical sex.

Texas and numerous other states sued ED, DOJ, and other government agencies to enjoin enforcement of the DCL and similar guidance applying to the employment setting under Title VII. The states argued that the agencies’ guidelines marked a substantive change in the government’s interpretation of Title IX and Title VII—a change that could only be made pursuant to the notice and comment provisions of the APA and not through informal guidance documents such as the DCL. The states also argued that the term “sex” used in Title IX and Title VII unambiguously refers to a person’s anatomical sex at birth and does not include gender identity.

In his 38 page opinion, Judge Reed O’Connor concluded that the agencies likely violated the APA by implementing a substantive change without formal notice and comment rulemaking. He also concluded that the term “sex”—at least as that term was understood when Title IX and Title VII were passed—refers to anatomical sex, not gender identity. Accordingly, Judge O’Connor found that the states were likely to succeed on the merits of their claims and preliminarily enjoined ED and the other agencies from enforcing their guidelines against K-12 schools, colleges, and universities. Although the lawsuit was filed in Texas, this ruling applies nationwide.

Notably, this decision is at odds with the majority decision in G.G. v. Gloucester County School Board, where a divided three judge panel of the U.S. Court of Appeals for the Fourth Circuit concluded the term “sex” is ambiguous and that it was reasonable for ED to construe it to include gender identity. The Gloucester decision is currently on hold pending a determination by the U.S. Supreme Court as to whether it will hear the case.

ED and the other agencies are likely to appeal Judge O’Connor’s ruling enjoining enforcement of the gender-identity guidelines. We will monitor any appeal and provide updates on our blog.

What this means to you

ED and other federal agencies are currently prohibited from enforcing the guidelines articulated in ED’s May 13, 2016 DCL discussing gender identity and transgender status. For institutions that disagree with ED’s guidance and do not wish to comply with the DCL, the preliminary injunction removes the immediate necessity for compliance unless state or local law separately prohibits discrimination on the basis of gender identity. The order does not prohibit institutions from voluntarily complying with the DCL if they wish to do so.