The U.S. Supreme Court has agreed to hear oral argument in one of the high-profile challenges to the legality of the Dear Colleague Letter (“DCL”) jointly issued by the U.S. Departments of Justice and Education on May 13, 2016, announcing the Departments would “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Gloucester County School Board v. G.G., 822 F.3d 709 (4th Cir. 2016), cert. granted (U.S. Oct. 28, 2016) (No. 16-273).

Background

The DCL offered guidance on a range of issues, including access to restrooms, locker rooms, and similar facilities, equal protection in educational programs and activities, and recordkeeping, and privacy. (See our article, U.S. Departments of Justice and Education Issue ‘Significant Guidance’ on Transgender Rights under Title IX.) The U.S. Equal Employment Opportunities Commission has applied the same standards under Title VII.

In this case, a transgender male student challenged under Title IX the school’s policy barring him from using the boy’s bathroom. The U.S. Court of Appeals for the Fourth Circuit, in Richmond, relied on the DCL to find that Title IX was ambiguous as applied to transgender students, and the court should give deference to the federal agencies’ interpretation pursuant to Auer v. Robinson, 519 U.S. 452 (1997). (Auer was recently criticized by conservative Justices on the Supreme Court.) Auer held that courts should defer to an agency’s interpretation as controlling so long as it is not “plainly erroneous or inconsistent with the regulation.” Based on Auer, the Fourth Circuit ruled the student should be permitted to use the restroom associated with his gender identity.

Petition to Court

On August 3, the Supreme Court voted 5-to-3 to temporarily stay the order from the Fourth Circuit while it decided whether to accept an appeal from the defendant school board.

In its August 29 petition, the School Board requested review of three questions: (1) whether the Court should retain the Auer doctrine applied by the Fourth Circuit; (2) if Auer is retained, whether deference should extend to an unpublished agency letter, like the DCL, that does not carry the force of law and was adopted in the context of the dispute in which deference is sought; and (3) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and related regulations should be given effect.

The Court agreed to review only the second and third questions, signaling it does not wish to revisit the Auer standard at this time. Oral argument is expected in the Court’s February 2016 sitting, which begins on February 21.

Other Notable Cases Addressing Title IX and Transgender Students

A ruling from the Supreme Court will be a step toward addressing the split of authority on Title IX’s application to transgender students.

Texas Injunction Update

In August, a Texas federal court issued a nationwide injunction against enforcement of the guidance contained in the DCL.

On October 18, in response to the plaintiffs’ motion for clarification, the court issued an order reaffirming the injunction is nationwide, but that the injunction does not affect litigation that had been “substantially developed” before the court’s August 21, 2016, Order granting the preliminary injunction. It said, “In pending litigation concerning access to intimate facilities, if no responsive pleadings were filed and no substantive rulings issued before August 21, 2016, the preliminary injunction applies and [the Departments of Education and Justice] are enjoined from relying on the [DCL].”

The court also clarified the preliminary injunction applies only to that portion of the DCL addressing access to intimate facilities (e.g., bathrooms and locker rooms). However, the court ordered the parties to provide briefs on whether the injunction should be expanded to apply to all of the guidelines in the DCL. It also instructed the parties to present arguments on whether the injunction should apply to claims under Title VII, and to enforcement actions by the Department of Labor and the Occupational Safety and Health Administration.

On October 20, the Department of Education and the Department of Justice filed a Notice of Appeal regarding the August 21 preliminary injunction. The case was docketed with the Court of Appeals for the Fifth Circuit, in New Orleans, on October 31.

At present, the Texas ruling is the only decision issued after the DCL was published holding that “sex” is determined by biological gender. The only other case that similarly held is Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657, 676 (W.D. Pa. 2015), appeal dismissed (Mar. 30, 2016). That decision was issued before the DCL was published, and therefore did not consider guidance from the Department of Education or what level of deference that should be applied by the court.

The Texas and Western Pennsylvania rulings are at odds with several other recent opinions from sister courts, including the District Court for the Northern District of Illinois.

Illinois Litigation

On October 18, a magistrate judge in the Northern District of Illinois issued a Report and Recommendation in Students and Parents for Privacy v. U.S. Department of Education, et al., recommending that the district judge deny the plaintiff’s motion for injunctive relief. No. 16-cv-4945 (N.D. Ill. filed Oct. 18, 2016). That plaintiffs are a group of parents and students who oppose a school policy allowing transgender students to use restrooms and locker rooms consistent with their gender identity.

The magistrate judge found the plaintiffs had failed to show a likelihood of success on their Title IX and privacy claims. The magistrate’s ruling is based, at least in part, on the Seventh Circuit’s decision to vacate a July 27 panel decision holding that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act and granted rehearing en banc. (See our article, Seventh Circuit to Reconsider Title VII Prohibition of Discrimination Based on Sexual Orientation.) The magistrate judge also determined that privacy protections in place at the school (including privacy stalls), as well as messaging from the school “made clear that any cisgender high school student who does not want to use a restroom with a transgender student is not required to do so. If the privacy stalls and protections the District provides in restrooms and locker rooms are not sufficient for the comfort of any student, whether cisgender, transgender, or otherwise, he or she can use an alternative facility that satisfies his or her privacy needs.”

Ohio Litigation

Privacy concerns have been raised in many cases addressing Title IX’s coverage of transgender students. For example, an order from the U.S. District Court for the Southern District of Ohio addressed privacy concerns raised after the court granted a preliminary injunction requiring a school district to recognize an 11-year-old as a female and to provide her access to female restrooms. Board of Educ. of Highland Local School District v. U.S. Department of Education, No. 16-CV-524 (S.D. Ohio filed Oct. 20, 2016). An appeal by the plaintiff school district is pending appeal to the Sixth Circuit.

In denying the stay of its ruling pending appeal, the court determined the school district had not demonstrated a likelihood of success on the merits of the Title IX and Equal Protection claims. The court also determined the school district will not suffer irreparable harm by treating the student as female and allowing her to use female restrooms. In support of its argument of irreparable harm, the school district had pointed to more than 20 inquiries it had received from parents as a result of the court’s ruling, raising privacy concerns and requesting their students be allowed to use single-user restrooms, rather than the restroom used by the transgender student. Noting the calls were in response to the school district’s voicemail alerting parents to the student’s transgender status, informing them of the school’s legal position and inviting comments, the court found the school district could not manufacture its own irreparable harm.

School districts should take note of this ruling and not contact parents to disclose private student information where it is not necessary. However, as evidenced by the Northern Illinois case, schools should make clear to students and parents that alternative restrooms will be provided if cisgender students feel uncomfortable using a restroom with a transgender student. This notice should maintain the confidentiality of the transgender student and not identify the student by name. The notice also should identify an administrator students may talk to if they have any questions or concerns.

Challenge to North Carolina’s H.B. 2 Restroom Law

Running contemporaneously to these Title IX challenges, the Fourth Circuit is accepting amicus briefing in Joaquin Carcano et al. v. Patrick McCrory et al., a challenge to North Carolina’s House Bill 2 (H.B. 2), which bans transgender people from accessing restrooms and other facilities consistent with their gender identities and blocks local governments from protecting LGBT individuals against discrimination in a variety of settings. (See our article, North Carolina Legislation Removes LGBT Protections and Possible Wrongful Termination Claims.)

In an August ruling from the U.S. District Court for the Middle District of North Carolina, the court granted the plaintiffs an injunction preventing schools and universities from enforcing H.B. 2, but it concluded the plaintiffs did not clearly show they were likely to succeed on their Equal Protection claim, thus limiting the scope of the injunction. Amicus briefs are being filed in support of expanding the injunction on Equal Protection grounds.

While the legitimacy of the DOJ’s and DOE’s interpretation of Title IX in the DCL remains in question, it appears likely the U.S. Supreme Court will resolve the conflicting conclusions reached by federal district courts across the country. Meanwhile, schools, colleges, and universities should continue to review and, as appropriate, update their harassment and transgender policies with careful consideration to the DCL, which ultimately may be upheld as a valid interpretation warranting judicial deference. Schools, colleges, and universities also should train school administrators, human resources, and faculty on how best to comply with transgender student rights.