Federal courts all over the country are hearing challenges to the Department of Education's position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity. This post will cover two key developments in separate cases that occurred this week.
In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender student's right to use the girls' locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agency's finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Education's guidance document that contains its interpretation of Title IX's application to transgender rights. It also alleged that the school's inclusive locker room policy violated their children's constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school district's policy that permits the transgender student to use the girls' locker room remains in effect.
As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue. The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VII's protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agency's interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.
The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Department's guidance about Title IX's application to transgender rights. Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judge's issuance of a nationwide injunction against the guidance has any bearing on this case.
Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order."
The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judge's acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question. Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.
Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX.