2016-09-12 Recently, in State of Texas v. United States, a Texas federal judge temporarily enjoined nationwide enforcement of the Department of Justice (the DOJ) and Department of Education’s (the DOE) (collectively, the Departments) joint directive issued in May concerning their interpretation of Title IX’s protections for transgender students. Under Title IX, “[n]o person… shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under §106.33 of the DOE’s related regulations, “[a] recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” The Departments’ directive clarified that they include a student’s transgender status within the definition of “sex” for purposes of enforcing Title IX. As a result, the Departments instructed, “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The directive took the form of a “Dear Colleague” letter and explained a school’s obligations to transgender students under Title IX and how the Departments intended to evaluate a school’s compliance with these obligations. These obligations include allowing transgender students to use bathroom, locker, and shower facilities consistent with their gender identity. The directive instructed that a school may not require a transgender student to use individual-use facilities when other students are not required to do the same. Fifteen plaintiffs, including thirteen states and agencies represented by state leaders and two school districts, one in Texas and one in Arizona, sought to enjoin enforcement of the directive on the basis that it was final agency action, and as such, required a notice and comment period under the Administrative Procedure Act (the APA). Plaintiffs contended that the Departments’ directive was legislative in character, and not merely interpretive as argued by the Departments, because it imposed substantive obligations to change policies and facilities and effectively amended prior Title IX legislation and associated regulations. During the preliminary injunction hearing, the Departments confirmed that Plaintiffs were not in compliance with the guidelines…

November 1, 2016

2016-09-12 Recently, in State of Texas v. United States, a Texas federal judge temporarily enjoined nationwide enforcement of the Department of Justice (the DOJ) and Department of Education’s (the DOE) (collectively, the Departments) joint directive issued in May concerning their interpretation of Title IX’s protections for transgender students. Under Title IX, “[n]o person… shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under §106.33 of the DOE’s related regulations, “[a] recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” The Departments’ directive clarified that they include a student’s transgender status within the definition of “sex” for purposes of enforcing Title IX. As a result, the Departments instructed, “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The directive took the form of a “Dear Colleague” letter and explained a school’s obligations to transgender students under Title IX and how the Departments intended to evaluate a school’s compliance with these obligations. These obligations include allowing transgender students to use bathroom, locker, and shower facilities consistent with their gender identity. The directive instructed that a school may not require a transgender student to use individual-use facilities when other students are not required to do the same. Fifteen plaintiffs, including thirteen states and agencies represented by state leaders and two school districts, one in Texas and one in Arizona, sought to enjoin enforcement of the directive on the basis that it was final agency action, and as such, required a notice and comment period under the Administrative Procedure Act (the APA). Plaintiffs contended that the Departments’ directive was legislative in character, and not merely interpretive as argued by the Departments, because it imposed substantive obligations to change policies and facilities and effectively amended prior Title IX legislation and associated regulations. During the preliminary injunction hearing, the Departments confirmed that Plaintiffs were not in compliance with the guidelines…