"The Texas Transgender Guidance Case Impact on Fall 2016 and Beyond”
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Today’s Presenter
Jim Newberry
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jim.newberry@steptoe‐johnson.com
859.219.8226(O)/859.421.8526(M)
Introduction
• Steptoe & Johnson PLLC
– More than 100 years old
– 325 +/‐ lawyers w/ broad range of practice areas
– Higher Ed Practice Group
• Jim Newberry
– Practiced law since 1981, including Georgetown College VP & General Counsel
– Former mayor of Lexington, Ky
– NAICU & U.S. Chamber
Overview
• The Issues Raised in Texas Transgender Litigation
• The Terms of the August 21 Injunction
• Impact of the Injunction on Fall 2016 Operations
• Implications of the Ruling on Other Department of Education Guidance
Issues Raised in Litigation
• Parties
– Plaintiffs
• Texas and 12 Other States
• Two School Districts
– Defendants
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Department of Education (“DOE”)
Department of Justice (“DOJ”)
Department of Labor (“DOL”)
Equal Employment Opportunity Commission (“EEOC”)
Issues Raised in Litigation
• Core Issue ‐ Validity of Guidance Documents Listed in Injunction
– 2010 DOE Bullying Memo
– 2014 DOE Q&A Guidance
– 2014 Holder Memo re Transgender Employment
– OSHA Transgender Restroom Access Guide
– EEOC Transgender Restroom Fact Sheet
– 2016 DOJ/DOE Dear Colleague Letter
Issues Raised in Litigation
• Broader Issues for Higher Ed
– Validity of Prior Title IX Guidance
• 2001 Revised Sexual Harassment Guidance
• 2011 Dear Colleague Letter
– Appropriate Use of Agency Guidance in Lieu of:
• Legislation Adopted by Congress
• Regulations Adopted Pursuant to Administrative Procedures Act
Issues Raised in Litigation
• Plaintiffs’ Legal Arguments
– Definition of “Sex” Used in Guidance Was Unlawful
– 34 CFR §106.33 Contemplates Separate, Comparable Facilities for Students of Each Sex
– New Definition of “Sex” and Enforcement Actions Based on New Definition Create a Threat of Irreparable Harm
Issues Raised in Litigation
• Defendants’ Legal Arguments
– Guidance and Enforcement Actions Were:
• Consistent with Non‐discrimination Mandate of TIX
• Mere Expressions of Agencies’ View of TIX Requirements
– Guidance Did Not Create Rights or Impose Requirements Beyond TIX
Injunction Terms
• Overview of Injunction
– Background
– Legal Standards
• Administrative Procedures Act
• Preliminary Injunction
– Analysis
• Jurisdictional Standards – Met by Plaintiffs
• Preliminary Injunction Standards – Met by Plaintiffs
Injunction Terms
• Analysis of Preliminary Injunction Standards
– Plaintiffs Likely to Succeed on Merits
– Threat of Irreparable Harm Exists
– Injury to Plaintiffs Outweighs Damage to Defendants or the Public Interest
Injunction Terms
• Plaintiffs Likely to Succeed on Merits
– Defendants Violated APA [5 USC §553(b)‐(c)] By Circumventing Notice and Comment Process
• Court rejected Defendants’ claim that the guidance documents were exempt from APA as interpretive rules and statements of agency policy.
• Court accepted Plaintiffs’ argument that guidance documents were “legislative” in nature and not merely interpretive because they set clear legal standards.
• Since not exempt, Defendants should have used notice and comment process of APA.
Injunction Terms
• Plaintiffs Likely to Succeed on Merits
– Defendants also violated 5 USC §706(2)(A) since the guidance documents were not in accordance with law.
• TIX and 34 CFR §106.33 Are Not Ambiguous – “Sex” as used in statute and regulation “meant the biological and anatomical differences between male and female students as determined at their birth.”
– “Sex” did not mean one’s gender identity.
• In Absence of Ambiguity, Defendants Not Entitled to Deference.
• The Defendants’ Conclusion That Discrimination on the Basis of “Sex” Means Anything Other Than Sex Determined at Birth Was Contrary to TIX and 34 CFR §106.33. Injunction Terms
• Analysis of Preliminary Injunction Standards
– Plaintiffs Likely to Succeed on Merits
– Threat of Irreparable Harm Exists
– Injury to Plaintiffs Outweighs Damage to Defendants or the Public Interest
Injunction Terms
• Overview of Injunction
– Background
– Legal Standards
• Administrative Procedures Act
• Preliminary Injunction
– Analysis
• Jurisdictional Standards – Met by Plaintiffs
• Preliminary Injunction Standards – Met by Plaintiffs
• Scope of Injunction ‐ Nationwide
– Conclusion
Injunction Terms
• Conclusion
– Defendants Enjoined from Enforcing Guidance
– Defendants Also Enjoined from Initiating, Continuing, or Concluding Any Investigation Based on Guidance
– Defendants Enjoined from Using Guidance or Asserting Validity of Guidance in Any Litigation Initiated after August 21, 2016
So What?
2016 Operational Impact
• Exercise Caution in Confusing Legal Environment
– Conflicting rulings by U.S. Fourth Circuit Court of Appeals (Grimm v. Gloucester Co. School Board)
– Uncertain impact of TX case in other states
• Assume DOE’s Position Is Unchanged from May 2016 Guidance
– Complaints filed by transgender students today will take months to resolve.
– Intervening judicial proceedings may yield fluid legal environment with more contradictory results prior to Supreme Court resolution.
• Watch Appellate Proceedings in Fifth Circuit (which covers TX, LA, and MS) & U.S. Supreme Court
2016 Operational Impact
• Other Court Challenges May Influence Rules for Campuses in Other Parts of the U.S.
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Neal v. DOE and CSU/Pueblo (CO)
Ehrhart v. DOE (GA)
Doe & OK Wesleyan v. Lhamon (DC)
Grimm v. Gloucester County School Board (VA)
Carcano v. McCrory (NC)
• Until More Judicial Decisions, Follow May 2016 Guidance to Fullest Extent Possible
• Use TX Arguments to Negotiate with OCR If Complaint Is Filed
Impact on DOE’s Future Use of Guidance
• Although TX Case Focused on Transgender Issues, Legal Arguments Are Broadly Applicable to DOE Use of Guidance
– Claims That DOE Violated Administrative Procedures Act Have Added Potency
– Plaintiff’s Assertion of Threat of Irreparable Harm Has Added Validity
• DOE’s Earlier Success in Fourth Circuit and in Trial Courts Makes Continued Use of Guidance Likely in Indefinite Future
Impact on DOE’s Future Use of Guidance
• Supreme Court Resolution Likely
– Stay of Fourth Circuit Decision.
– Potential for Conflict between 4th & 5th Circuits.
• Meanwhile, Elections Matter
– Supreme Court decision most likely to occur after new president appoints a new justice.
– Congress can vote to modify/clarify Title IX so as to remove ambiguity about whether the law covers transgender issues.
QUESTIONS?
Material Disclaimer
These materials are public information and have been prepared solely for educational purposes. These materials reflect only the personal views of the authors and are not individualized legal advice. It is understood that each case is fact‐specific, and that the appropriate solution in any case will vary. Therefore, these materials may or may not be relevant to any particular situation. Thus, the authors and Steptoe & Johnson PLLC cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney‐
client relationship with the authors or Steptoe & Johnson PLLC. While every attempt was made to insure that these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.