WICHITA Falls, Texas – On Aug. 21, U.S. District Judge Reed O’Connor for the Northern District of Texas Wichita Division granted plaintiffs, led by the state of Texas and comprised of 15 states, agencies and school districts, including the Heber-Overgaard Unified School District of Arizona, their motion for a preliminary injunction against the federal Department of Justice (DOJ) and Department of Education’s (DOE) May 13, 2016 “Dear Colleague Letter on Transgender Students” sent to schools across the country mandating they “immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding.”
Title IX, landmark legislation enacted in 1972, prohibits discrimination among federal fund recipients on the basis of sex.
The legislative history reflects Title IX as being hailed by Congress as “an indelible step forward for women’s rights.”
However, Section 106.33 of the regulations, as well as other related regulations, implemented by the DOE in 1980, permit educational institutions to separate students on the basis of sex, provided the separate accommodations are comparable.
Defendants have newly interpreted the word “sex” in the various written directives as applied to Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 to mean “gender identity” rather than biological sex.
Defendants have asserted if plaintiffs refuse to permit employees to use the intimate areas of their choice they will face legal liability under Title VII.
According to plaintiffs, when Title IX was signed into law, neither Congress, nor agency regulators and third parties “believed that the law opened all bathrooms and other intimate facilities to members of both sexes.”
In fact, provisions of Title IX expressly authorize separate restrooms on the basis of sex.
Plaintiffs stress the term sex in the statutes and regulations pertinent to this case means the biological difference between a male and female.
O’Connor’s order states, “Plaintiffs state that defendants’ swift move to supplant the traditional, biological meaning of sex with a definition based on gender identity through the Guidelines, coupled with defendants’ actions to enforce these new agency policies through investigations and compliance reviews, causes plaintiffs to suffer irreparable harm for which a preliminary injunction is needed.”
Meanwhile, defendants contend the Guidelines and recent enforcement actions are designed to prohibit sex discrimination on the basis of gender identity and that the Guidelines are not legally binding.
The order cites the Administrative Procedures Act (APA), which authorizes suit by “a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
For defendants to institute new rules, they are required to adhere to the notice and comment process, which was not done.
O’Connor concluded the Plaintiffs’ request to impose the injunction nationwide should also be granted, noting states that do not want to be covered by the injunction can easily avoid doing so if state law authorizes schools to define sex to include gender identity for purposes of providing separate restroom, locker room, showers, and other intimate facilities.
O’Connor’s order prohibits defendants from enforcing its Guidelines against plaintiffs and their respective schools, school boards, and other public, educationally based institutions while also enjoining them from initiating, continuing or concluding any investigation based on their interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.
The preliminary injunction will remain in effect until the court rules on the merits of the claim or until further direction from the Fifth Circuit Court of Appeals.
