The Obama administration is making an 11th-hour effort to defend its policies on allowing transgender individuals to use restrooms at public schools and workplaces that corresponds to their gender identity, stressing that its guidance on the subject is non-binding on states and school districts.
The U.S. Department of Justice filed a brief late last week in the U.S. Court of Appeals for the 5th Circuit, in New Orleans, asking the court to toss out a nationwide injunction issued by a federal district judge in Texas last year that blocks various forms of the administration’s transgender guidance.
In an Aug. 21 preliminary injunction that was clarified in an Oct. 18 order, Judge Reed O’Connor of U.S. District Court in Wichita Falls, Texas, blocked, among other federal guidance, a May 13 document issued by the Departments of Education and Justice that calls on schools to respect the restroom choices of transgender students. The guidance is based on the Education Department’s interpretation of Title IX of the Education Amendments of 1972, which bars discrimination based on sex in federally funded educational programs.
In its 5th Circuit brief, the Justice Department says the appeals court should not take up the question of whether the Education Department’s Title IX interpretation is correct because the U.S. Supreme Court is weighing that question in a pending case, Gloucester County School Board v. G.G.
The 5th Circuit court “nonetheless should not await the Supreme Court’s decision, because the preliminary injunction should be vacated on grounds entirely independent of the district court’s misinterpretation of the Title IX regulation,” says the Justice Department’s brief in State of Texas v. United States.
The brief argues that the Title IX guidance, as well as other transgender guidance put forth by the Justice Department and other federal agencies under Title VII of the Civil Rights Act of 1964, did not require a notice-and-comment rulemaking process under the Administrative Procedures Act.
“But none of the six guidance documents at issue here constitutes ‘final agency action'—a prerequisite for APA review—because the guidance documents carry no legal force, but rather simply advise the public of the agencies’ understanding of the law,” the brief says.
That last statement is worth some further analysis. The Obama administration is walking a tightrope there, because the tone of that argument differs markedly from the tone expressed in the Title IX guidance.
The Education and Justice departments last April called their “Dear Colleague” letter on transgender rights “significant guidance.”
“The departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” the “Dear Colleague” letter states. “This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
But in the 5th Circuit brief, the Justice Department argues that the Title IX guidance (and other federal guidance documents) “do not create any legal obligations or require [plaintiff states and school districts] to modify their conduct in any way.”
“If a federal agency ever brought an enforcement action against any plaintiff, that action would rest on the statutes, not on the non-binding guidance,” the brief continues. “As to Title IX, such enforcement action would generally occur through multi-stage administrative proceedings, followed by an opportunity for judicial review in the court of appeals.”
And the “Dear Colleague” letter contains a disclaimer, the 5th Circuit brief points out. The letter declares that “this guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the departments evaluate whether covered entities are complying with their legal obligations.”
The brief also argues that O’Connor overstepped his authority by making his preliminary injunction against the guidance a nationwide injunction. While Texas and 10 other states, along with school districts from two other states, filed the lawsuit and sought the injunction, 12 other states and the District of Columbia filed a brief in the district court stating that they welcome the transgender guidance, the department points out.
“Texas cannot seek to enjoin the federal government’s interactions with New York any more than New York may seek to enjoin the federal government’s interactions with Texas,” the brief says.
The Justice Department brief also requests oral argument in the case. That underscores that should the 5th Circuit court grant such a request, it would almost certainly occur after President-elect Donald Trump’s administration has taken office. By that time, the federal government’s guidance on transgender rights, and legal arguments in the Texas case, may well have changed.