In the case of Texas v. United States, No. 7:16-cv-00054 (N.D. Tex. Aug. 21, 2016), a federal district court in Texas issued a nationwide order preventing the United States Department of Education (“Department”) from “initiating, continuing, or concluding any investigation based on [the Department’s] interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.”
This decision has its roots in a Dear Colleague Letter that the Department issued in conjunction with the Department of Justice, which clarified its position that the obligation under Title IX of the Education Amendments of 1972 (“Title IX”) “to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” This obligation would extend to providing equal access to restrooms, locker rooms, showers, and other facilities consistent with transgender students’ gender identities. To read our prior blog regarding the Dear Colleague Letter, please click here.
Following the issuance of this guidance, a constortium of 11 states and agencies represented by various state leaders and school boards sued multiple state agencies and officials challenging their assertion that Title IX, as well as Title VII of the Civil Rights Act of 1964, “require that all persons must be afforded access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex.”
The central issue in this dispute is a regulation promulgated by the Department implementing Title IX, which states that a recipient of federal aid “may provide separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 618.410. The Department argued that its guidance simply provides clarity to an ambiguity in this regulation in how to define the term “sex” when dealing with transgender students. The Texas federal district court disagreed, concluding that the regulation “is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in [the regulation] when it was enacted by [the Department] following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.” Accordingly, the court issued a nationwide order preventing the Department from enforcing its interpretation of Title IX.
The effect of this order on Ohio is not clear. While the Texas federal district court issued a nationwide injunction, it clarified that “an injunction should not unnecessarily interfere with litigation currently pending before federal courts on this subject.” There is currently litigation pending before a federal court in Ohio on this very subject and the law firm of McGown & Markling is representing the school board and its officials in this lawsuit. As a result, we recommend that you contact your legal counsel or McGown & Markling for advice on how to proceed should these complex issues arise.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.