[Jonathan H. Adler] Court blocks federal government’s ‘guidance’ on transgender bathrooms

A sign marks the first gender-neutral restroom in the Los Angeles school district, at Santee Education Complex high school. (Lucy Nicholson/Reuters)

In an order filed Sunday, a federal district court in Texas issued an injunction barring the federal government from enforcing the administration’s position that federal civil rights laws require, among other things, that schools allow students to use those bathroom facilities that correspond with a student’s professed gender identity. This position was detailed in a “Dear Colleague” letter issued by the Education and Justice departments in May.

In a 38-page opinion, Judge Reed O’Connor concluded that the plaintiffs had standing to challenge the guidance documents at issue, that their claim was ripe for judicial resolution and that they had a substantial likelihood of success on the merits. The decision, in yet another case captioned Texas v. United States, will certainly be appealed.

The most important part of the decision was the court’s conclusion that the DOE/DOJ guidance was invalid because the agencies failed to go through a notice-and-comment rulemaking before declaring that, for instance, school districts are obligated to accommodate the stated gender identities of students under existing federal law. I think this is correct.

For years, most schools understood Title IX as applying to biological sex and existing law made it clear that schools could (but were not required to) provide sex-segregated bathroom and locker facilities. Whether or not the guidance is a good idea, it certainly represents a significant change in what schools are expected to do, and puts substantial amounts of federal funding at risk should schools fail to comply. (The issues extend beyond schools, but I’m just focusing on the application to the educational context.)

Although the “Dear Colleague” letter is presented as a non-binding guidance document, that is not its purpose or effect. The document throughout purports to establish and redefine school districts’ legal obligations under Title IX. As the court explained, the federal government’s “Guidelines and actions indicate that [plaintiff states and school districts] jeopardize their federal education funding by choosing not to comply with [the] Guidelines.” This is the sort of thing that agencies should do through rulemaking, not through a guidance or other non-binding policy document. This is particularly so where, as here, the federal government wishes to cite the guidance document as a definitive interpretation that is worthy of deference from the courts.

The court in this case went further and concluded that the guidance documents are also invalid because they contradict the relevant statutory and regulatory text in Title IX and the DOE’s implementing regulations. I am not sure the court needed to reach this question once it concluded that the guidance documents were invalid under the Administrative Procedure Act. I am also not sure that the court was correct to conclude that either the statute or the relevant regulations were “unambiguous.”

While it is fairly clear that Title IX was enacted to prevent discrimination against women, the language is broader than that. Further, if one believes that the plain text of a statute is more important than legislative history (as I do) there is a reasonable argument that it is unclear how a prohibition on discrimination “on the basis of sex” should apply to transgender individuals. So even if one is inclined to think the interpretation offered by O’Connor here (and Judge Niemeyer in his G.G. v. Gloucester County School Board dissent) is the better one, that does not mean the federal government is precluded from putting forth an alternative view

As I noted in a prior post:

There is [a] serious argument that the language of Title IX is sufficiently ambiguous that the Education Department could adopt a controlling interpretation in a properly promulgated regulation. Under Chevron, I would expect the Education Department to prevail should it ever issue a rule interpreting Title IX to cover transgender individuals in th