February 16, 2017 – On February 10, 2017, the Trump Administration signaled a change in policy on transgender students. Days before oral arguments were scheduled to be held on a motion filed by the Obama Administration in State of Texas et al. v. United States of America et al., the Trump Administration withdrew the motion, stating, “The parties are currently considering how best to proceed in this appeal.” The implication, of course, is that the Trump Administration is considering whether it agrees with the Obama Administration’s interpretation of Title IX’s application to transgender students.

As discussed in a previous Legal Update, Judge Reed O’Connor of the Northern District of Texas had previously issued a nationwide injunction against the Departments of Education and Justice (DOE/DOJ) in State of Texas et al. v. United States of America et al. The injunction prevented the DOE/DOJ from “initiating, continuing, or concluding any investigation based on [their] 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 prevented the DOE/DOJ from asserting that its joint guidance carried any weight in any other litigation initiated after the date the injunction was issued. The Obama Administration requested a partial stay of the injunction, asking that its scope be narrowed so that it only applies to the states involved in the lawsuit, including Wisconsin, and not nationwide.

This decision of the Trump Administration to withdraw the motion does not change the status quo for now, as the nationwide injunction against the DOE/DOJ has already been in effect since August. Further, the Trump Administration has yet to issue guidance stating what its position on Title IX’s application to transgender students is, although the withdrawal of the motion for a partial stay signals that the Trump Administration’s position may be different from the Obama Administration’s. Depending on what the Trump Administration’s position ultimately is, the G.G. v. Gloucester case pending before the Supreme Court could be impacted.

We will certainly keep you advised of any developments in this area. If you have questions about this Legal Update, 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.