Heyl Royster

The Battle Over the Bathrooms

October 27, 2016

By: Brian Smith, bsmith@heylroyster.com

Earlier this year, thirteen states and agencies (the Plaintiffs) filed suit against the Departments of Education, Justice, Labor, the Equal Employment Opportunity Commission, and various agency officials (the Defendants) challenging the Defendants’ position that Title VII and Title IX require that all persons “must be afforded the opportunity to have access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex.” State of Texas v. United States of America, 16-cv-54, Prelim. Inj. Order, 2-3, ECF No. 58 (N.D. Tex. Aug. 21 2016).

According to the Plaintiffs, in May of 2016, the Department of Justice and Department of Education wrote letters to schools throughout the United States stating, in part, that they must “immediately allow students to use the bathrooms, locker rooms and showers of the students’ choosing, or risk losing Title IX–linked funding.” Order, 3, ECF No. 58. The Plaintiffs also allege Defendants asserted that those who “refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII.” Id. One of the Plaintiffs’ primary arguments is that “Defendants’ interpretation of the definition of ‘sex’ in the various written directives (collectively, ‘the Guidelines’) as applied to Title IX . . . and Title VII . . . is unlawful and has placed them in legal jeopardy.” Id.

Plaintiffs assert that the term “sex” in the relevant statutes and regulations refers to the biological differences between a male and a female. In contrast, Defendants contend that the Guidelines and recent actions taken are consistent with the nondiscrimination mandate of Title IX.

Plaintiffs sought a preliminary injunction to prevent the Departments of Education and Justice from enforcing the intimate facilities sections of the Guidelines while the case is pending. On August 21, 2016, the district court concluded that the preliminary injunction was warranted for three reasons: (1) the Defendants did not comply with the notice and comment process of the Administrative Procedure Act; (2) Title IX and the regulations are not ambiguous; and (3) Defendants are not entitled to agency deference. Id. at 23. The district court concluded that the agency’s rules and Guidelines regarding the definition of “sex” and its application to intimate facilities was legislative and substantive rather than interpretative. Accordingly, the court concluded that the Defendants should have complied with the notice and comment requirements of the Administrative Procedure Act. Id. at 26-27.

The court further evaluated the interpretation of regulations regarding educational institutions’ provision of intimate facilities and concluded that Defendants’ interpretation was insufficient to overcome the regulations’ plain language. The court held that “sex” as used in the statute and regulations that were passed “meant the biological and anatomical differences between male and female students as determined at their birth.” Id. at 31. The court issued an injunction, to apply nationwide, permitting separate facilities for males and females, without regard to gender identity.

On October 18, 2016, the court issued an order clarifying its August ruling. The court clarified that the injunction is to apply nationwide. The court noted that “[b]oth Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide.” State of Texas v. United States of America, 16-cv-54, Order, 4, ECF No. 86 (N.D. Tex. Oct. 18 2016). The court also clarified that the injunction does not affect the Defendants’ core missions. The EEOC and other agencies are not enjoined from fulfilling their statutory duties. “Defendants are simply prevented from using the Guidelines to argue that the definition of sex as it relates to intimate facilities includes gender identity.” Id. at 5.

This case and others like it are still in the early stages. The court has requested additional briefing on a number of issues and an interlocutory appeal has been filed. As these matters develop, we will continue to keep you apprised.

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