Earlier this week, a U.S. District Court judge for the Northern District of Texas, issued a preliminary injunction prohibiting the U.S. Department of Justice and U.S. Department of Education from taking action to enforce their guidance letter on the rights of transgender students under Title IX.  For a summary of the federal guidance, please see our May 18th blog article.

Specifically, the judge’s order prohibits the U.S. government from:

  • Enforcing the DOE/DOJ transgender guidance letter against the named plaintiffs in the suit and other “public educationally based institutions;”
  • Initiating, continuing or concluding any investigation based on the U.S. government’s interpretation that the definition of “sex,” for purposes of Title IX, includes gender identity; and
  • Asserting that their guidance carries any weight in litigation on or after August 21, 2016.

In ordering the injunction, the judge stated that the guidance will likely be found to constitute “legislative rulemaking” and therefore should have gone through the regulatory process required by the federal Administrative Procedure Act (i.e. formal notice, followed by a comment period). The court concluded that the injunction should apply nationwide.

At the time of this blog post, the federal government has not indicated whether it plans to challenge the injunction.  Since it’s possible that it will seek a stay, school districts are encouraged to work with their legal counsel to stay up to date on the status of the injunction and its potential impact on the district. OSBA continues to suggest that districts work with students requesting accommodations on a case-by-case basis through interaction with the students and the district’s board counsel.

For additional information, please contact OSBA’s division of legal services. 

Posted by Sara Clark on 8/26/2016