Monday, August 22, 2016

Federal Court Blocks Department of Education's Transgender Rules, Increasing the Odds of the Supreme Court Taking Up the Issue

A federal district court in the Northern District of Texas just blocked the Obama Administration from enforcing its interpretation that Title IX ensures transgender students the right to use bathroom facilities consistent with their gender.  On Sunday, in Texas v. United States, the district court wrote:

The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).

The court further explained:

Based on the foregoing authority, the Court concludes § 106.33 [the existing federal regulation] is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth. See 34 C.F.R. § 106.33; 45 Fed. Reg. 30955 (May 9, 1980); Thomas Jefferson Univ., 512 U.S. at 512 (holding that intent determined at the time the regulations are promulgated). It appears Defendants at least tacitly agree this distinction was the intent of the drafter. See Holder Memo 1, ECF No. 6-3 (“The federal government’s approach to this issue has also evolved over time.”); see also Hr’g Tr. 33 (“[I]t may very well be that Congress did not intend the law to protect transgender individuals.”). Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students. Pls.’ Mot. Injunction 17–18, ECF No. 11 (citing legislative history and common understanding of its meaning at the time of passage). As the support identified by Plaintiffs shows, this was the common understanding of the term when Title IX was enacted, and remained the understanding during the regulatory process that led to the promulgation of § 106.33. See Pls.’ Am. Compl. ¶¶ 8–13, ECF No. 6; see also G.G., 822 F.3d at 736 (Niemeyer, J., dissenting) (providing comprehensive list of various definitions from the 1970s which demonstrated “during that time period, virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions.”). This undoubtedly was permitted because the areas identified by the regulations are places where male and female students may have to expose their “nude or partially nude body, genitalia, and other private parts,” and separation from members of the opposite sex, those whose bodies possessed a different anatomical structure, was needed to ensure personal privacy. See G.G., 822 F.3d at 723.

. . . .

Based on the foregoing, the Court concludes § 106.33 is not ambiguous. Given this regulation is not ambiguous, Defendants’ definition is not entitled to Auer deference, meaning it does not receive controlling weight. Auer, 519 U.S. at 461. Instead, Defendants’ interpretation is entitled to respect, but only to the extent it has the power to persuade. Christensen, 529 U.S. at 587. 

Following the Fourth Circuit's holding in a similar case earlier this year--Grimm v. Gloucester--I queried whether the issue of transgender youth's access to facilities might fade quickly, as districts, states, and other lower courts fell in line behind the Fourth Circuit and the U.S. Department of Education's reasoning.  For a short while, that appeared to be likely.  The Supreme Court's recent order of stay in Grimm and now this negative decision in Texas, however, suggests that the issue is anything but settled and is likely to produce a number of conflicting opinions before the Supreme Court settles it.  

Then again, maybe this is much ado about nothing.  It is unclear why the Court granted a stay in Grimm or whether it will grant certiorari.  I must admit I was surprised by the stay, although it is not uncharacteristic from this Court. The Court surprisingly entered a stay in one of recent marriage cases.  That stay came after having denied certiorari in other cases, but before ultimately extend the right to marry to gay and lesbian couples a year or so later in Obergefell v. Hodges.  In other words, it is dangerous to try to read the tea leaves of this Court based on its stays and cert denials.  Yet, they may be exactly what the trial court in Texas was doing.

The Supreme Court's stay in Grimm probably incentivized the trial court to enter an injunction in Texas.  If the Court is showing any uncertainty in Grimm, one could understand why other courts would take a cautious approach to their pending cases.  The irony is that by issuing a decision contrary to the Fourth Circuit, the Texas district court may have just made the grant of certiorari in Grimm all the more likely.

Get the full opinion in Texas v. U.S. here.

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