Alliance Defending Freedom Legal Counsel Matt Sharp commented on a federal district court’s limited nationwide order Sunday in State of Texas v. United States of America that stops the Obama administration from forcing public schools to allow boys into girls’ locker rooms, showers, and restrooms while the lawsuit of several states moves forward. The court found that the federal government failed to follow the public notice and comment process that federal law requires and that the text of Title IX regarding the definition of sex is unambiguous—Congress intended it to refer to the “biological differences between male and female students”:
“The Obama administration cannot unilaterally disregard and redefine federal law to accomplish its political agenda of forcing girls to share locker rooms and showers with boys. The court in this case made clear that the administration ignored the federally required public notice and comment process as well as the crystal clear meaning of Title IX in its attempt to force its will on the American people. We are currently reviewing the order to determine the positive impact this order has for the cases that ADF is litigating against the departments of Education and Justice in Illinois, North Carolina, and Ohio. Schools have a duty to protect the privacy, safety, and dignity of all students, and this order certainly helps them in fulfilling that duty.”
Excerpts from the order of the U.S. District Court for the Northern District of Texas, Wichita Falls Division:
p. 31: “Based on the foregoing authority, the Court concludes § 106.33 is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.”
p. 31-32: “Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students. As the support identified by Plaintiffs shows, this was the common understanding of the term when Title IX was enacted, and remained the understanding during the regulatory process that led to the promulgation of § 106.33. This undoubtedly was permitted because the areas identified by the regulations are places where male and female students may have to expose their ‘nude or partially nude body, genitalia, and other private parts,’ and separation from members of the opposite sex, those whose bodies possessed a different anatomical structure, was needed to ensure personal privacy.”
p. 32: “Based on the foregoing, the Court concludes § 106.33 is not ambiguous. Given this regulation is not ambiguous, Defendants’ definition is not entitled to Auer deference, meaning it does not receive controlling weight…. Instead, Defendants’ interpretation is entitled to respect, but only to the extent it has the power to persuade.”
p. 37: “Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.”
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