Bench Memos

The Obama Administration’s Transgender ‘Dear Colleague’ Letter Hits Texas Roadblock

This week many children nationwide begin another school year. It was therefore fitting that Sunday night Judge Reed O’Connor from the Northern District of Texas attempted to provide some clarity — and one might say sanity — in the ongoing legal battle over the Obama administration’s Dear Colleague Letter dictating national education policy relating to transgender students’ access to bathrooms and other private spaces. Judge O’Connor’s preliminary injunction order is the most recent event in what has turned into a flurry of national litigation activity following issuance of the letter from the Departments of Education and Justice. But at this point, it is the most impactful.

The order leaves little uncertainty as to three key points — the “guidance” issued by the departments is in fact a legislative rule and therefore subject to the Administrative Procedure Act’s requirements, including the requirement that the agencies follow notice-and-comment rulemaking; the departments’ interpretation of Title IX is in direct conflict with the clear language of the law and the legislative history surrounding the law and manufactures ambiguity regarding the term “sex” in Title IX; and the court’s order applies nationwide.

The departments have consistently attempted to portray the dear colleague letters as simply “significant guidance.” Similarly, the departments have attempted to take a “nothing-to-see-here” position by arguing plaintiffs “have [not] identified any enforcement action to which they are or are about to be subject in which a defendant agency is seeking to enforce its view of the law.” As the court pointed out, the problem with this position is that it’s not accurate. Plaintiffs established school districts and employers have been subject to enforcement actions. In fact, plaintiffs point out that the departments are affirmatively using the guidelines to force compliance, which often will come in the form of resolution agreements.

Despite their argument that enforcement actions have not taken place, the court addressed the departments’ absurd position that even if DOE were to bring an administrative enforcement action for noncompliance, plaintiffs “still would be unable to make a showing of irreparable harm because they would have an opportunity to challenge the interpretation in an administrative process prior to any loss of federal funds.” In other words, if a school district finds itself the target of an enforcement action, in the process likely being forced to revise policies, incur legal expenses, and endure lost productivity from administrators, it wouldn’t actually be harmed because, hey, it could appeal an adverse decision to a tribunal almost certain to affirm the initial decision.

The court countered by emphasizing plaintiffs’ argument that the letter was anything but simply toothless guidance. Instead, it represented a “Hobson’s choice between violating federal rules (labeled as regulations, guidance, and interpretations) on the one hand, and transgressing longstanding policies and practices, on the other.” More specifically, “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” In so holding, the court noted numerous state statutes which conflicted with the federal “guidance”, in particular Wisconsin’s. Chapter 120 of the Wisconsin Statutes vests school boards and local officials with the “possession, care, control and management of the property and affairs of the school district” and requires school boards to “provide and maintain enough suitable and separate toilets and other sanitary facilities for both sexes.”

Because the “guidance” is actually a legislative rule, the court found that the departments should have followed APA notice-and-comment rulemaking. By ignoring the APA process, the departments avoided public involvement in the process, presumably intentionally so. “The APA requires rules to be published in the Federal Register and that the public be given an opportunity to comment on them.” The purpose behind the notice-and-comment requirement is to “permit the agency to understand and perhaps adjust its rules based on the comments of affected individuals.” Because the departments refused to treat the letter as a legislative rule, it avoided the messiness of public input. The court found this to be a clear violation of the APA.

The court also addressed head on the departments’ blatant disregard for congressional intent. At a hearing the departments’ counsel admitted “it may very well be that Congress did not intend the law to protect transgender individuals . . . the fact that Congress may have understood the term sex to mean anatomical sex at birth is largely irrelevant.”

In response, the court provided a tutorial on statutory interpretation for the government’s attorneys. It noted “the starting point to analyze this dispute begins with the actual text of the statute or regulation, where the words should be given their ordinary meaning.” And therein lies the problem for the administration. Applying traditional standards of statutory interpretation and not viewing the original congressional intent as “irrelevant”, the administration’s argument based on “manufactured” ambiguity falls apart.

The court instead found that “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 birth.” The court emphasized the common understanding of the term sex when Title IX was enacted, “and remained the understanding during the regulatory process that led to the promulgation of § 106.33.” The court’s conclusion was additionally supported by simply looking to the statutory sections preceding and succeeding the Title IX provision in question, all of which provided for separate accommodations based on male/female status, assuming the accommodations are comparable.

Finally, and important for purposes of those states, school boards, and parents not a party to the litigation, the court applied its preliminary injunction nationwide. While the departments argued the decision should only apply to those parties in the Fifth Circuit, the court applied the decision nationwide but noted limiting factors. It found that states that recognized gender identity for purposes of providing separate facilities would be unaffected. In addition, states that do not want to be covered by the injunction can “easily avoid doing so by state law that recognizes the permissive nature” of the enacting regulation. Therefore, the order “only applied to those states whose laws direct separation.”

Judge O’Connor’s decision will certainly not be the last word in this debate. However, for parents, teachers, school administrators, and taxpayers, the decision represents a powerful line in the sand — unelected D.C. bureaucrats may not issue dictates from afar, particularly dictates which touch on the most sensitive of policy questions local school boards are elected to deliberate.

Jake Curtis is a Milwaukee attorney. He previously served as the Wisconsin Department of Natural Resources’ chief legal counsel under Governor Scott Walker and as an associate counsel at the Wisconsin Institute for Law & Liberty.

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