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Federal District Court Denies Preliminary Injunction Requiring School District to Segregate Restroom and Locker Facilities by Biological Sex of Students

Posted on: December 31st, 2017 by Art Leonard No Comments

 

Accepting a report and recommendation from U.S. Magistrate Judge Jeffrey T. Gilbert, U.S. District Judge Jorge L. Alonso ruled on December 29, 2017, that a group of parents and cisgender students are not entitled to a preliminary injunction blocking Illinois’s Township High School District 211 from allowing transgender students to use restrooms and locker rooms consistent with their gender identity. Students and Parents for Privacy v. United States Department of Education, 2017 U.S. Dist. LEXIS 213091 (N.D. Ill., E.D.).

The dispute grew out of prior legal action by a transgender girl at William Fremd High School in Palatine, Illinios, a suburb of Chicago, seeking to use the girls’ facilities. During the Obama Administration, the U.S. Education Department responded to the student’s complaint by negotiating a settlement agreement with the school district under which Student A, as she was identified, would be allowed to use these facilities.  The school district’s willingness to settle turned on a formal Guidance issued by the U.S. Education and Justice Departments construing Title IX to require such a policy.

Reacting to the settlement, an ad hoc group of parents of students at Fremd High School, together with some girls who attend the high school, brought this suit in May 2016, represented by Alliance Defending Freedom, asserting that the girls had a constitutional and statutory right not to have “biological boys” present in their restroom and locker room facilities where they could see girls in a state of undress. The lawsuit targeted the U.S. Departments of Education and Justice for issuing the Guidance and negotiating the settlement.  The school district was also named as a defendant.  Student A, together with two other transgender students in the district and their parents, were granted intervenor status as defendants.

Magistrate Judge Gilbert, to whom the motion for preliminary injunction had been referred by Judge Alonso, issued his report on October 18, 2006, concluding that plaintiffs were unlikely to prevail on their claims, and recommending that the motion be denied. Plaintiffs filed objections with Judge Alonso.

While the objections were pending there were several developments significantly affecting the case. Donald J. Trump was elected president a few weeks after the Magistrate Report was issued, and he then appointed new leadership to the two Departments after his term began on January 20, 2017.  The two Departments then jointly withdrew the Obama Administration Title IX Guidance, opining that it had not been properly issued and that the matter required more study, but not taking any position on whether transgender students had such protection under Title IX, commenting that these issues should be decided at the local level.  Thus, the Trump Administration was, at least as of then, “neutral” on the question, although since then Attorney General Sessions and the Justice Department have gone on record as opposing an expansive interpretation of Title IX to embrace gender identity (and sexual orientation) discrimination claims.

However, shortly after the withdrawal of the Guidance, the 7th Circuit Court of Appeals ruled in a similar case, Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (petition for certiorari pending), that Title IX does extend to gender identity discrimination claims, and upheld an injunction ordering a Wisconsin school district to allow a transgender boy to use the boys’ restroom facilities at a public high school.

The Trump Administration actions mooted the part of the lawsuit against the federal government defendants, as the policy the plaintiffs are challenging was no longer federal executive branch policy. Thus, the plaintiffs agreed to drop the federal defendants from the case.  Also, because Student A has graduated, the plaintiffs’ specific objection to District 211’s agreement with the Education Department concerning facilities access for that student was mooted as well.  However, Intervenor Students B and C and their parents, and possibly other transgender students in District 211, would present the same access issues, so the plaintiffs’ claims against the District under Title IX and the Constitution continue so long as the District does not disavow the access policy to which it had agreed.

In essence, Plaintiffs’ Title IX complaint relies on a long-standing Title IX regulation that authorizes schools to maintain sex-separate restroom and locker room facilities, provided that the facilities are comparable in scope and quality. Plaintiffs argue that this authorization of sex-segregated facilities recognizes the privacy concerns of the students (and their parents), and that requiring students to have to share such facilities with transgender students of a different “biological” sex contradicts those privacy concerns.  The Magistrate had rejected this argument in October 2016, and the 7th Circuit’s Whitaker decision subsequently confirmed the Magistrate’s understanding of this issue.

Wrote Judge Alonso, “Discrimination against transgender individuals is sex discrimination under Price Waterhouse, the 7th Circuit explained, because ‘by definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.’  Following Price Waterhouse and its progeny, the Court reasoned that a ‘policy that requires an individual to use a restroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance which in turn violates Title IX.  Providing a gender-neutral alternative was insufficient to relieve the school district from liability under Title IX, the Seventh Circuit explained, because it was ‘the policy itself which violates the Act.”

The plaintiffs tried to distinguish the Whitaker case because it addressed only restrooms, not locker rooms, and because, they insisted, the decision was so “astonishingly wrong” that its reasoning undercuts its “worth even as persuasive authority.”  The problem with that, of course, is that Illinois is in the same 7th Circuit as Wisconsin, so Whitaker is not just persuasive authority; it is binding on Judge Alonso.

The judge insisted that nothing in Whitaker “suggests that restrooms and locker rooms should be treated differently under Title IX or that the presence of a transgendered student in either, especially given additional privacy protections like single stalls or privacy screens, implicates the constitutional privacy rights of others with whom such facilities are shared.  Plaintiffs’ critiques notwithstanding,” he continued, “Whitaker reflects a straightforward application of the long-standing line of sex stereotyping decisions, fully in line with the Supreme Court’s guidance on sex discrimination claims.”  Thus, under Whitaker, plaintiffs could not meet the first test for preliminary injunctive relief: showing the probability that they would prevail on the merits of their claim.  Judge Alonso devoted several paragraphs to explaining why the plaintiffs’ attempts to distinguish or disparage Whitaker were unavailing in meeting their burden under the motion.

“Furthermore,” he wrote, “even if Plaintiffs had shown a likelihood of success on the merits, they would still not be entitled to a preliminary injunction because they have not shown they are likely to suffer irreparable harm in the absence of an injunction, or that they lack an adequate remedy at law in the event that they ultimately succeed on their claims.” Indeed, as far as demonstrating harm goes, “the only specific harm to which they point is the risk of running late to class by using alternate restrooms to avoid sharing with a transgender student and the ‘embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation , and loss of dignity’ allegedly felt by Student Plaintiffs arising from such sharing.”  The Magistrate [Judge Gilbert] had found that these were insufficient to establish irreparable injury, because courts routinely award monetary damages for emotional distress, and “the risk of being late to class has not been shown to have any meaningful impact on Student Plaintiffs’ education.”

Judge Alonso considered it worth nothing that the District’s practice of letting transgender students use appropriate facilities had been going on for nearly three years when this lawsuit was filed, but “either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years,” as no examples of actual incidents were proffered in support of their motion. “The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm,” wrote Alonso.  “This Court agrees with the Magistrate Judge’s assessment, ‘there is no indication that anything has negatively impacted Girl Plaintiffs’ education.”  Judge Alonso overruled the objections, and accepted the Magistrate’s recommendation to deny the preliminary injunction.

Now that pretrial motions have been disposed of, the court gave the defendants until January 30, 2018, to file an answer to the complaint, and set a status hearing for February 8. In light of the Whitaker case and Judge Alonso’s strongly-worded opinion, one would expect the school district to promptly file a motion for summary judgment, if ADF does not decide within the next few weeks to fold up its tent and steal away.  Of course, what could change the situation dramatically would be a grant of certiorari by the Supreme Court of the school district’s petition in the 7th Circuit Whitaker case.  But the parties in that case were reportedly close to a settlement and had asked the Supreme Court to extend the time for Whitaker’s counsel to file a response to the cert petition, so it appears likely that a cert grant will not be forthcoming during the month of January leading up to School District 211’s court-imposed deadline to respond to the complaint in this case.

The transgender student Intervenors are represented by the ACLU of Illinois and the national ACLU Foundation, with pro bono attorneys from Mayer Brown LLP.

Federal Court Issues Nationwide Injunction to Stop Federal Enforcement of Title IX in Gender Identity Cases

Posted on: August 22nd, 2016 by Art Leonard No Comments

A federal district judge in Wichita Falls, Texas, has issued a “nationwide preliminary injunction” against the Obama Administration’s enforcement of Title IX of the Education Amendments Act to require schools to allow transgender students to use restroom facilities consistent with their gender identity. Judge Reed O’Connor’s August 22 ruling, State of Texas v. United States of America, Civ. Action No. 7:16-cv-00054-O (N.D. Texas), is directed specifically at a “Dear Colleague” letter dated May 13, 2016, which the Department of Justice (DOJ) and Department of Education (DOE) jointly sent to all the nation’s schools subject to Title IX, advising them of how the government was now interpreting federal statutes forbidding discrimination “because of sex.”  The letter advised recipients that failure to allow transgender students’ access to facilities consistent with their gender identity would violate Title IX, endangering their eligibility for funding from the DOE.

The May 13 letter was sent out shortly after the U.S. Court of Appeals for the 4th Circuit, based in Richmond, had ruled in April that this interpretation by the Administration, previously stated in filings in a Virginia lawsuit, should be deferred to by the federal courts.  G.G. v. Gloucester County School Board, 822 F.3d 709.    That lawsuit is about the right of Gavin Grimm, a transgender boy, to use boys’ restroom facilities at his Gloucester County, Virginia, high school.  The ACLU had filed the case on Grimm’s behalf after the school district adopted a rule forbidding students from using single-sex-designated facilities inconsistent with their “biological sex” as identified on their birth certificates, a rule similar to that adopted by North Carolina in its notorious H.B.2, which is itself now the subject of several lawsuits in the federal district courts in that state.  After the 4th Circuit ruled, the federal district judge hearing that case, Robert Doumar, issued a preliminary injunction requiring that Grimm be allowed access to the boys’ restrooms while the case is pending, and both Judge Doumar and the 4th Circuit Court of Appeals refused to stay that injunction.  However, the U.S. Supreme Court voted 5-3 to grant the school district’s request for a stay on August 3.  Judge O’Connor prominently mentioned the Supreme Court’s action in his opinion as helping to justify issuing his preliminary injunction, commenting that the case presents a question that the Supreme Court may be resolving this term.

Underlying this and related lawsuits is the Obama Administration’s determination that federal laws banning sex discrimination should be broadly interpreted to ban discrimination because of gender identity or sexual orientation. The Administration adopted this position officially in a series of rulings by the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace.  This interpretation was in line with prior decisions by several federal circuit courts, ruling in cases that had been brought by individual transgender plaintiffs to challenge discrimination under the Violence against Women Act (VAWA), the Fair Credit Act (FCA), and Title VII.  These are all “remedial statutes” that traditionally should receive a liberal interpretation in order to achieve the policy goal of eliminating discrimination because of sex in areas subject to federal legislation.  Although the EEOC and other federal agencies had rejected this broad interpretation repeatedly from the 1960s onward, transgender people began to make progress in the courts after the Supreme Court ruled in 1989 that sex-stereotyping by employers – disadvantaging employees because of their failure to comply with the employer’s stereotyped view of how men and women should act, groom and dress – could be considered evidence of sex discrimination, in the case of Price Waterhouse v. Hopkins.  While some of these courts continue to reject the view that gender identity discrimination, as such, is automatically illegal under these statutes, they have applied the sex-stereotype theory to uphold lawsuits by individual transgender plaintiffs, especially those who are discharged in response to their announcement that they will be transitioning or when they begin their transition process by dressing in their desired gender.

The Education Department built on this growing body of court rulings, as well as on the EEOC’s rulings, when it became involved in cases where transgender students were litigating over restroom and locker room access. DOE first expressed this view formally in a letter it sent in connection with a lawsuit against an Illinois school district, participated in negotiating a settlement in that case under which the school district opened up restroom access, and then began to take a more active approach as more lawsuits emerged.  By earlier this year DOE and DOJ were ready to push the issue nationwide after the 4th Circuit’s ruling marked the first federal appellate acceptance of the argument that this was a reasonable interpretation of the existing regulation that allows school districts to provide separate facilities for boys and girls, so long as the facilities are comparable.  DOE/DOJ argue that because the regulation does not specifically state how to resolve access issues for transgender students, it is ambiguous on the point and thus susceptible to a reasonable interpretation that is consistent with the EEOC’s position on workplace discrimination and the rulings that have emerged from the federal courts under other sex discrimination statutes.  Under a Supreme Court precedent, agency interpretations of ambiguous regulations should receive deference from the courts if those interpretations are reasonable.

The May 13 letter provoked consternation among officials in many states, most prominently Texas, where Attorney General Ken Paxton took the lead in forming a coalition of about a dozen states to file this joint lawsuit challenging the DOE/DOJ position. Paxton aimed to bring the case in the federal court in Wichita Falls before Judge O’Connor, an appointee of George W. Bush who had previously issued a nationwide injunction against the Obama Administration’s policy of deferring deportation of undocumented residents without criminal records and had also ruled to block an Obama Administration interpretation of the Family and Medical Leave Act favoring family leave for gay employees to care for same-sex partners.  Paxton found a small school district in north Texas, Harrold Independent School District, which did not have any transgender students but nonetheless adopted a restrictive restroom access policy, to be a co-plaintiff in the case in order justify filing it in the Wichita Falls court.  Shortly after Paxton filed this case, Nebraska Attorney General Doug Peterson put together another coalition of nine states to file a similar lawsuit in the federal district court in Nebraska early in July.

These cases rely heavily on an argument that was first proposed by Alliance Defending Freedom (ADF), the anti-gay “Christian” public interest law firm, in a lawsuit it brought in May on behalf of some parents and students challenging the settlement of the Illinois case, and a “copycat” lawsuit filed by ADF in North Carolina. The plaintiffs argue that the DOE/DOJ position is not merely an “interpretation” of existing statutory and regulatory requirements under Title IX, but rather is a new “legislative rule,” imposing legal obligations and liabilities on school districts.  As such, they argue, it cannot simply be adopted in a “guidance” or “letter” but must go through the formal process for adopting new regulations under the Administrative Procedure Act. This would require the publication of the proposed rule in the Federal Register, after which interested parties could submit written comments, perhaps one or more public hearings being held around the country to receive more feedback from interested parties, and then publication of a final rule, which would be subject to judicial review in a case filed in a U.S. Court of Appeals.  (This is referred to as the “notice and comment” process.) Neither DOE nor any other agency that has adopted this new interpretation of “sex discrimination” has gone through this administrative rulemaking process.  Additionally, of course, the plaintiffs contend that this new rule is not a legitimate interpretation of Title IX, because Congress did not contemplate this application of the law when it was enacted in the 1970s.

In his August 22 ruling, O’Connor concluded that the plaintiffs met their burden to show that they would likely succeed on the merits of their claim, a necessary finding to support a preliminary injunction. As part of this ruling, he rejected the 4th Circuit’s conclusion that the existing statute and regulations are ambiguous and thus subject to administrative interpretation.  He found it clear based on legislative history that Congress was not contemplating outlawing gender identity discrimination when it passed sex discrimination laws, and that the existing regulation allowing schools to provide separate facilities for boys and girls was intended to protect student privacy against being exposed in circumstances of undress to students of the opposite sex.  In the absence of ambiguity, he found, existing precedents do not require the courts to defer to the agency’s interpretation.  He found that the other prerequisites for injunctive relief had been met, because he concluded that if the enforcement was not enjoined, school districts would be put to the burden of either changing their facilities access policies or potentially losing federal money.  He rejected the government’s argument that the lack of any imminent enforcement activity in the plaintiff states made this purely hypothetical.  After all, the federal government has affirmatively sued North Carolina to enjoin enforcement of the facilities access restrictions in H.B.2.

Much of O’Connor’s decision focuses on the question whether the plaintiffs had standing to challenge the DOE/DOJ guidance in a district court proceeding and whether the court had jurisdiction over the challenge. He found support for his ruling on these points in a recent decision by the 5th Circuit Court of Appeals (which has appellate jurisdiction over cases from Texas) in a lawsuit that Texas brought against the EEOC, challenging a “guidance” about employer consideration of applicant arrest records in deciding whether to hire people.  Texas v. EEOC, 2016 WL 3524242.  Noting disparate enforcement of criminal laws against people of color, the EEOC took the position that reliance on arrest records has a disparate impact on people of color and thus potentially violates Title VII.  A 5th Circuit panel divided 2-1 in determining that the state had standing to maintain the lawsuit and that the district court had jurisdiction to rule on the case.   This suggests the likelihood that the Administration may have difficulty persuading the 5th Circuit to overrule O’Connor’s preliminary injunction on procedural grounds if it seeks to appeal the August 22 ruling.

The Administration argued in this case that any preliminary injunction by O’Connor should be narrowed geographically to the states in the 5th Circuit, even though co-plaintiffs included states in several other circuits, but O’Connor rejected this argument, agreeing with the plaintiffs that the injunction should be nationwide.  He emphasized the regulation allowing schools to have sex-segregated restroom facilities.  “As the separate facilities provision in Section 106.33 is permissive,” he wrote, “states that authorize schools to define sex to include gender identity for purposes of providing separate restrooms, locker rooms, showers, and other intimate facilities will not be impacted” by the injunction.  “Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognized the permissive nature” of the regulation.  “It therefore only applies to those states whose laws direct separation.  However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of state law.  As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate.”  This reference is directed mainly to the plethora of lawsuits pending in North Carolina, in which the federal government is contending that H.B.2 violates Title IX and Title VII.