The Trump Administration, keeping a promise made by Donald Trump (although, like on many issues, he made contradictory statements) during his campaign to leave the issue of restroom and locker room access by transgender students up to state and local officials, issued a letter to all the nation’s school districts on February 22, withdrawing a letter that the Obama Administration Education Department submitted in the Gavin Grimm transgender rights case on January 7, 2015, and a “Dear Colleague” letter sent jointly by the Education and Justice Departments to the nation’s school districts on May 13, 2016. The Obama Administration letters had communicated an interpretation of Title IX of the Education Amendments of 1972, a statute banning sex discrimination by educational institutions that receive federal money, as well as a DOE regulation issued under Title IX, 34 C.F.R. Section 106.33, governing sex-segregated facilities in educational institutions, to require those institutions to allow transgender students and staff to use facilities consistent with their gender identity. The regulation says that educational facilities may have sex-segregated facilities, so long as they are “equal.”
The February 22 letter states that the Departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Department thus will not rely on the views expressed within them.” It also states that the departments “believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy,” embodying Trump’s articulated campaign position on this issue. At the same time, however, the February 22 letter stated: “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” and insisted that the withdrawal of the earlier guidance documents “does not leave students without protections from discrimination, bullying, or harassment” and that the Education Department’s Office of Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every opportunity to protect all students and to encourage civility in our classrooms.” It asserts that the two departments “are committed to the application of Title IX and other federal laws to ensure such protection.” Secretary DeVos emphasized this point in a statement she released, asserting that the Education Department’s mission includes assuring that all students are protected against discrimination. However, Press Secretary Sean Spicer said on February 22 that the administration was analyzing its overall position on Title IX, which could result in parting ways from the Obama Administration’s view that Title IX prohibits gender identity discrimination in schools.
The withdrawn guidance and the 2015 letter sent in connection with the Grimm litigation were not the first position statements from the Education Department on the scope of coverage under Title IX to mention protection of LGBT students. A prior guidance, issued on April 29, 2014, signed by Assistant Secretary Catherine E. Lhamon and titled “Questions and Answers on Title IX and Sexual Violence,” states, in response to the question “Does Title IX protect all students from sexual violence?”: “Yes. Title IX protects all students at recipient institutions from sex discrimination, including sexual violence. Any student can experience sexual violence from elementary to professional school students; male and female students; straight, gay, lesbian, bisexual and transgender students; part-time and full-time students; students with and without disabilities; and students of different races and national origins.” The guidance also addressed the issue of same-sex violence, pointing out that LGBT students report high rates of violence and suggested ways for institutions to respond to the problem. The guidance also cites back to a June 14, 2011 guidance that addressed the rights of student-initiated groups, such as Gay/Straight Alliances, under the Equal Access Act.
Thus, an internal contradiction appears in the February 22 letter, which at least implies or assumes that sexual orientation and gender identity discrimination do violate Title IX, but that the question of whether transgender students should be allowed access to sex-segregated facilities consistent with their gender identity needs further study, and perhaps needs to be addressed in a new regulation accompanied by detailed analysis that is put through the Administrative Procedure Act process of publication of proposed rules, public comment and hearing, and final publication in the Federal Register, with Congress having a period of several months during which it can intervene to block a new regulation.
The Solicitor General’s office, which represents the government in Supreme Court cases, also informed the Supreme Court on February 22 that the Obama Administration guidance documents of 2015 and 2016 had been withdrawn, that the views expressed in them would no longer be relied upon by those executive branch agencies, and that, instead, the administration would “consider further and more completely the legal issues involved.” This development came just six weeks before the Supreme Court argument scheduled for March 28 in Gloucester County School Board v. G.G. (the Gavin Grimm case), and just before the due date for the Solicitor General to file an amicus brief presenting the government’s position on the issues before the Court. The Court might react to this development in a variety of ways. Since the government is not a party in the case, the Court might just go ahead with the argument on the questions on which it granted certiorari. Or it might consider that this development renders moot one or both of the questions on which it granted review, which could lead to a reshaping of the case to focus solely on the appropriate interpretation of Title IX and the facilities regulation. It might even decide that the entire case should be sent back to the 4th Circuit for reconsideration in light of these developments, inasmuch as the only ruling on the full merits rendered thus far in this case was by the district court when it granted the defendants’ motion to dismiss the Title IX claim for failure to state a question. The 4th Circuit’s ruling was based on a deference analysis, not on a de novo consideration of the statutory interpretation issue. The appeal to the Supreme Court in this case was from the district court and the 4th Circuit’s refusal to stay a preliminary injunction issued by the district court on remand from the 4th Circuit, not from a ruling on the merits in favor of Grimm. The Clerk of the Court requested that counsel for the parties submit letters to the Court by March 1 responding to this development and suggesting how the Court should proceed with the case. Both parties encouraged the Court to rule on the merits (the school district, however, suggested the Court should ask for briefing from the Solicitor General and delay the argument, potentially to allow time for Neil Gorsuch to be confirmed—and be another likely vote in its favor). This is a change in position for the ACLU; the ACLU opposed the Court granting certiorari in the case at all back in September. The ACLU probably believes now might be the best shot, or even the only chance for one for the foreseeable future, for a transgender rights win from the Court, since the Court is likely to become only more conservative over the next few years. President Trump might get to fill another vacancy on the Court, in addition to the nomination of Judge Gorsuch to replace the late Associate Justice Antonin Scalia.
The February 22 Dear Colleague letter, sent over the signatures of Acting Assistant Secretary for Civil Rights Sandra Battle (Education Department) and Acting Assistant Attorney General for Civil Rights T.E. Wheeler, II (Justice Department), shows the signs of compromise reflecting the reported battle between Education Secretary Betsy DeVos and Attorney General Jefferson Beauregard Sessions. Several media sources reported that DeVos did not want to withdraw the earlier guidance, but that Sessions was determined to do so. In light of his record on LGBT issues as a Senator and former Attorney General of Alabama, Sessions is reportedly bent on reversing the numerous Obama Administration regulations and policy statements extending protection to LGBT people under existing laws. It was probably a big disappointment to him that the President decided not to rescind Obama’s Executive Order imposing on federal contractors an obligation not to discriminate because of sexual orientation or gender identity, and we may not have heard the last of the Administration on that issue. DeVos, by contrast, is reportedly pro-LGBT, despite the political views of her family, who are major donors to anti-LGBT organizations. According to press accounts, for example, in Michigan, when she was a state Republican Party chair, she intervened on behalf of a gay party staffer whose position was endangered when he married his partner.
Several newspapers and websites have reported that DeVos and Sessions brought their dispute to the President, who resolved it in favor of Sessions, leaving it to them to work out the details. Trump was undoubtedly responding to the charge by many Republicans that the Obama Administration had “overreached” in its executive orders and less formal policy statements, going beyond the bounds of existing legislation to make “new law” in areas where Congress had refused to act and overriding state and local officials on a sensitive issue. In this case, Republicans in both houses had bottled up the Equality Act during the last session, a bill that would have added sexual orientation and gender identity as explicitly forbidden grounds for discrimination in a variety of federal statutes, including Title IX. The bill has yet to be reintroduced in the new session of Congress that began in January.
While withdrawing the Obama guidance documents, the February 22 letter does not state a firm position on how Title IX should be interpreted, either generally, in terms of gender identity discrimination, or specifically, in terms of access to sex-segregated facilities, such as restrooms and locker rooms, and did not expressly withdraw earlier letters or guidance documents from the Education Department dealing with LGBT issues. The letter criticizes the withdrawn documents as failing to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX,” and points out that they did not “undergo any formal public process,” a reference to the Administrative Procedure Act steps that are necessary to issue formal regulations that have the force of law. It also noted the difference of views among lower federal courts on the bathroom issue, counterpointing the 4th Circuit’s ruling in the Grimm case with the Texas district court’s conclusion that the Dear Colleague letter exceeded the Department’s authority, which resulting in a preliminary nationwide injunction against its enforcement by the government.
While the withdrawn guidance documents did not have the force of law, they communicated to schools that the Education Department believed that Title IX bars gender identity discrimination and requires access to facilities consistent with a person’s gender identity, which meant that the Education Department or the Justice Department might initiate litigation or seek suspension of federal funding against districts which failed to comply. In the end, it would be up to courts to decide whether to follow this interpretation. Furthermore, federal courts have found an “implied right of action” by individuals to bring suit to enforce their rights under Title IX, and that is not changed by withdrawal of the guidance documents, although some federal district courts may be confused on this point.
The 4th Circuit’s decision of May 2016, up for review by the Supreme Court with oral argument scheduled for March 28, came in a lawsuit initiated by an individual high school student, Gavin Grimm, a transgender boy who was barred from using the boys’ restrooms at his high school by a resolution of the Gloucester County, Virginia, School Board after it received complaints from members of the community. District Judge Robert Doumar had dismissed Grimm’s Title IX complaint, even though the Obama Administration sent its January 7, 2015, letter, informing the court that the Education Department believed that Title IX required the school district to let Grimm use the boys’ restrooms. See 132 F. Supp. 3d 736 (E.D. Va. 2015). The 4th Circuit ruled that Judge Doumar should have deferred to the Education Department’s interpretation, as the regulation governing sex-segregated facilities was ambiguous on the question and the Department’s interpretation, which relied on federal appeals court and administrative agency decisions under other sex discrimination statutes finding that gender identity discrimination was a form of sex discrimination, was “reasonable.” See 822 F.3d 709 (4th Cir. 2016). The school district petitioned the Supreme Court to review this ruling.
The Supreme Court agreed to consider two questions: (1) Whether deference to an informal letter from the Education Department was appropriate, and (2) whether the Department’s interpretation of Title IX and the regulation was correct. See 137 S. Ct. 369 (Oct. 28, 2016). With the letter having been withdrawn, the question of deferring to it may be considered a moot point, but some commentators on administrative law had been hoping the Court would use this case as a vehicle to abandon its past ruling that courts should give broad deference to agency interpretations of ambiguous regulations, and the Court could decide that this issue has not really been rendered moot since it is a recurring one. As phrased, the certiorari question relating to this issue also emphasizes that at the time Judge Doumar dismissed the complaint, the only document from the Education Department was a letter, not a formal guidance or regulation, and questions whether such an informal communication merits deference, a point that the Court might want to address. Indeed, the February 22 letter implicitly raises the new question of whether the federal courts should defer to the February 22 letter in place of the withdrawn guidance.
The Supreme Court’s agreement to consider whether the Education Department’s interpretation was correct might also be considered moot, since the Education Department has abandoned that interpretation, but certainly the underlying question of how Title IX and the regulation should be interpreted is very much alive, as several courts around the country are considering the question in cases filed by individual transgender students, states, advocacy organizations and the Obama Administration Justice Department (in its challenge to North Carolina’s H.B. 2, which is based on Title IX, Title VII of the Civil Rights Act, and the Equal Protection Clause of the Constitution).
Two groups of states filed suit in federal courts challenging the Dear Colleague letter of May 13, 2016. In one of those lawsuits, with Texas as the lead plaintiff, Judge Reed O’Connor of the Northern District of Texas ruled that the plaintiffs were likely to succeed in their challenge, and issued a nationwide preliminary injunction last August forbidding the government from enforcing this interpretation of Title IX in any new investigation or case. The DOE/DOJ February 22 letter points out that this nationwide injunction is still in effect, so the departments were not able to investigate new charges or initiate new lawsuits in any event. What it doesn’t mention is that the Justice Department had filed an appeal to the 5th Circuit, challenging the nationwide scope of the injunction, but the Trump Administration recently withdrew that appeal, getting the 5th Circuit to cancel a scheduled oral argument on the motion. Of course, these lawsuits specifically challenging the 2016 guidance document are now probably moot, with those documents having been withdrawn by the Trump Administration, since the plaintiffs in those cases sought only prospective relief which is now unnecessary. Presumably a motion to dismiss as moot would be granted by Judge O’Connor, thus dissolving the preliminary injunction. O’Connor’s order never had any effect on the ability of non-governmental plaintiffs, such as Gavin Grimm, to file or maintain lawsuits under Title IX.
In North Carolina, the Obama Administration, former governor Pat McCrory, Republican state legislative leaders, a group representing parents and students opposed to transgender restroom access, and transgender people represented by public interest lawyers had all filed lawsuits challenging or defending H.B. 2. The Trump Administration’s February 22 actions may signal that at least the federal government is likely either to abandon or cut down on the scope of its lawsuit challenging H.B. 2. Since North Carolina is in the 4th Circuit, all of these cases were likely to be affected by any reconsideration by the 4th Circuit in light of these new developments. Around the country, several pending lawsuits have been put “on hold” by federal district judges as well, while awaiting Supreme Court action on the Gavin Grimm case. If the Supreme Court were to reject the argument that “sex discrimination” in a statute can be broadly construed to encompass gender identity, these cases, arising under either Title IX or Title VII, may be dismissed.
Since the confirmation hearing for Judge Gorsuch was scheduled to begin on March 20 and Democratic opposition may stretch out the confirmation process, it seems likely that there will be only eight members on the Supreme Court to consider the Grimm case. In that event, it seems predictable that the result would be either a tie affirming the 4th Circuit without opinion and avoiding a national precedent, or a 5-3 vote with an opinion most likely by Justice Anthony Kennedy, joining with the more liberal justices to adopt the more expansive reading of Title IX. However, as this will be the first time the Supreme Court has tackled directly a gender identity issue under sex discrimination laws, predicting how any member of the Court may vote is speculative.