Earlier today, Federal District Court Judge Reed O’Connor of the Northern District of Texas issued a preliminary injunction in  State of Texas et al. v. United States of America et al. This case began when thirteen states and agencies, including the State of Wisconsin, filed a lawsuit alleging that the interpretation of “sex” in the joint guidance issued by the Departments of Education and Justice (DOE/DOJ) was unlawful and exceeded the DOE/DOJ’s authority. In addition to requesting that the court declare the DOE/DOJ’s interpretation and guidance unlawful and unenforceable, the Plaintiffs requested a preliminary injunction which would temporarily block the DOE/DOJ from enforcing its position until the court ruled on the merits of the complaint.

The nationwide injunction granted by the court prevents the DOE/DOJ from “initiating, continuing, or concluding any investigation based on Defendant’s interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.” In addition, the injunction prevents the DOE/DOJ from asserting that its joint guidance, including the Dear Colleague Letter on Transgender Students issued by the DOE/DOJ on May 13, 2016, carries any weight in any other litigation initiated after today. The injunction will remain in effect until the court issues a decision on the merits.

We believe that the Texas court’s decision to put the DOE/DOJ’s enforcement of its position on hold will delay federal complaint and enforcement activities against school districts that are not in compliance with the DOE/DOJ guidance (e.g., school districts that do not permit transgender students to access the facilities that correspond with their gender identity instead of their sex assigned at birth). In the meantime, the DOE/DOJ will almost certainly appeal Judge O’Connor’s decision and resume accepting and deciding Title IX complaints consistent with the interpretation in the Dear Colleague Letter if Judge O’Connor’s decision is reversed.

Judge O’Connor’s decision comes on the heels of the U.S. Supreme Court’s decision to temporarily block an order allowing a transgender student to access the restroom which corresponds to his gender identity in G.G. v. Gloucester. The defendant school board will soon file its petition for review with the U.S. Supreme Court, at which point the Court will decide whether to hear the case. The lawsuit that was filed by a group of students in Palatine, Illinois, is also still pending. Because that case is in the Seventh Circuit, the decision will directly impact Wisconsin school districts. The Seventh Circuit’s decision in that case may or may not be consistent with the Texas court’s decision that was issued today.

While these cases continue work their way through the courts, we continue to recommend that school districts carefully review their existing facilities and consider developing guidelines or procedures that will govern issues relating to transgender or gender nonconforming students.  Although today’s decision is significant, it is highly unlikely that Judge O’Connor’s decision will be the final decision on the matter. If you have questions about this legal update or would like assistance reviewing or drafting procedures, please contact Alana Leffler at aleffler@buelowvetter.com  or 262-364-0267, or Gary Ruesch at gruesch@buelowvetter.com  or 262-364-0263, or your Buelow Vetter attorney.