20 State AG's Sue Feds Over LGBTQ Anti-Discrimination Interpretations

A 20-state coalition led by Tennessee Attorney General Herbert Slattery filed suit in a Tennessee federal district court challenging interpretations of anti-discrimination laws by the Department of Education and the EEOC. In response to an Executive Order issued by President Biden, these two agencies issued interpretations protecting against discrimination on the basis of sexual orientation or gender identity. The complaint (full text) in State of  Tennessee v. U.S. Department of Education, (ED TN, filed 8/30/2021), contends in part:

[T]he Department of Education ... and Equal Employment Opportunity Commission ..., each flouting procedural requirements in their rush to overreach, issued “interpretations” of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.

The relief requested by plaintiffs particularly focuses on concerns over transgender rights under Title VII and Title IX. 

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit. 

School Board Cannot Remove Teacher's Suit To Federal Court

In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court.  The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:

28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” The Board argues ... they either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming to discriminate, or to grant him an exception to their policies because of his religious beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent, however, precludes Title IX from being the type of “law providing for equal rights” referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights” in § 1443 to only those concerning racial equality....

Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.

Court Enjoins Enforcement of West Virginia's Ban On Transgender Girls Being On Girl's Sports Teams

In B.P.J. v. West Virginia State Board of Education, (D WV, July 21, 2021), a West Virginia federal district court granted a preliminary injunction to an 11-year old transgender girl who was kept off the girl's cross country and track teams under a West Virginia statute that bars students whose biological sex is male from girls' teams. The court found a likelihood of success on plaintiff's equal protection and Title IX claims, saying in part:

B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams....

As applied to B.P.J., Section 18-2-25d is not substantially related to protecting girls’ opportunities in athletics or their physical safety when participating in athletics. I find that B.P.J. is likely to succeed on the merits of her equal protection claim.

Courthouse News Service reports on the decision.

DOE Says Title IX Bans LGBT Discrimination

The U.S. Department of Education Office for Civil Rights yesterday issued a Notice of Interpretation (full text) extending Title IX's non- discrimination provisions to discrimination on the basis of sexual orientation or gender identity. This reverses a DOE interpretation issued by the Trump Administration just days before the change in Administrations. (See prior posting.) The new Interpretative memo states in part:

[T]he Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity....

Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.

The Interpretation notes in a footnote, however:

Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets. See 20 U.S.C. § 1681(a)(3).

Deseret News reports on the DOE's action.

DOJ's Memo In Title IX Litigation Raises Controversy

As previously reported, in a class action filed in April, LGBTQ+ students enrolled at religious colleges that receive federal financial assistance sued the Department of Education challenging the constitutionality of the exemption for religious organizations from anti-discrimination requirements of Title IX.  Subsequently, three Christian universities filed a motion to intervene as defendants, contending that the Department of Education would not adequately defend the exemption. The government's memo in opposition to the motion to intervene (full text) in Hunter v. U.S. Department of Education, (D OR, filed 6/8/2021) has created controversy.  As reported by the Washington Post:

Some LGBTQ advocates were disturbed by the filing...,  saying its wording went further than necessary, further than just an obligation to defend an existing law. They want the administration to agree with them that it’s unconstitutional for federally-funded schools to discriminate against LGBTQ people....

To others, including Biden supporters, the administration had no other option, since ... Title 9 ...exempts religion..... 

However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday, taking out the word “vigorously” to describe its defense of the religious exemption and retaining multiple uses of the word “adequate.” It removed wording that said the Department of Education and the Christian schools “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”

... Slate legal writer Mark Joseph Stern said the Justice Department was “trying to prevent a Christian organization from . . . mounting extreme arguments." Stern said the religious exemption to Title 9 isn’t “blatantly, invidiously unconstitutional” and thus the administration has no choice but to defend it.

LGBTQ+ Students Challenge Title IX Religious Institution Exemption

In a class action lawsuit filed earlier this week in an Oregon federal district court, 33 LGBTQ+ students enrolled at religious colleges that receive federal financial assistance challenge the constitutionality of the exemption in Title IX for educational institutions controlled by religious organizations.  The exemption applies if the non-discrimination provisions of Title IX would conflict with the organization's religious tenets. The complaint (full text) in Hunter v. U.S. Department of Education, (D OR, filed 3/29/2021) alleges that the Department of Education's refusal to enforce non-discrimination provisions against religious colleges:

leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.

Alleging equal protection and Establishment Clause claims, plaintiffs contend:

[W]hile the statutory religious exemption to Title IX may permit, or even require, the Department to refuse assistance to sexual and gender minority students like the Plaintiffs, the Constitution forbids such inaction.

NBC News reports on the lawsuit.

UPDATE: An amended complaint (full text) was filed on June 7, 2021).

DOE Says Bostock Decision Does Not Apply To Title IX

 As reported by Education Week, the U.S. Department of Education has released a Jan. 8, 2021 Memorandum (full text) on the impact of the U.S. Supreme Court's Bostock decision on Title IX. While Bostock held that the ban on sex discrimination in Title VII includes discrimination on the basis of sexual orientation and gender identity, the DOE Memo concludes that Bostock does not apply to Title IX, saying in part:

[T]he Department’s longstanding construction of the term “sex” in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment.

The memo goes on to provide that some kinds of discrimination based on a person's homosexuality or transgender status may violate Title IX because the discrimination takes into account the person's biological sex.  Examples are employment discrimination and sexual harassment. However, in other educational situations, Title IX does not protect against sexual orientation or gender identity discrimination:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.

Under Title IX and its regulations, a person’s biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible and may be required because the sexes are not similarly situated.

Disagreeing with two Circuit Court opinions, the memo states:

[W]e believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

The Memorandum also recognizes that religious exemptions under Title IX and RFRA still apply.

Ministerial Exception Applies To Title IX Hostile Work Environment Claims

In Koenke v. Saint Joseph's University, (ED PA, Jan. 8, 2021), a woman employed by a Catholic university sued under Title IX claiming sexual orientation discrimination.  The court held that the Supreme Court's Bostock decision should be read to apply to sexual orientation discrimination under Title IX as well as under Title VII. All the parties agreed that plaintiff's position as Assistant Director for Music and Worship was a "ministerial" position for purposes of the ministerial exception. However plaintiff claimed that the ministerial exception does not apply to non-tangible employment discrimination claims such as hostile work environment.  The court disagreed, saying in part:

[H]ostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.... The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.

SCOTUS Denies Review In Transgender Bathroom Case

The U.S. Supreme Court today denied review in Parents for Privacy v. Barr, (Docket No. 20-62, certiorari denied 12/7/2020). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. (See prior posting.) The petition for certiorari had raised privacy, religious and parental rights, and Title IX claims.

Seminary May Expel Students For Entering Same-Sex Marriages

In Maxon v. Fuller Theological Seminary, (CD CA, Oct. 7, 2020), a California federal district court held that the Religious Organization Exemption in Title IX applies to a seminary controlled by its own board of directors rather than by an outside religious organization. Thus, while Title IX was interpreted by the court to include a ban on discrimination on the basis gender stereotypes, the exemption allowed it to expel two students because they had entered same-sex marriages. Washington Times reports on the decision.

Court Enjoins Two Portions of Trump Administration's New Health Care Anti-Discrimination Rules

 In Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, Sept. 2, 2020), the D.C. federal district court, in a 101-page opinion, issued a nationwide injunction barring enforcement of two of the changes to health care anti-discrimination rules made by the Trump Administration earlier this year.  (See prior posting.)  The court summarized its holding:

The Court ultimately concludes that Plaintiffs have standing to level challenges to certain provisions of the 2020 Rule, but not others, and that they are likely to succeed (and will suffer irreparable harm) on two central claims: first, that the 2020 Rule arbitrarily and capriciously eliminated “sex stereotyping” from the prior Rule’s definition of “discrimination on the basis of sex”; and second, that it improperly incorporated Title IX’s exemption of certain religious organizations from the statute’s nondiscrimination mandate. 

11th Circuit Invalidates School's Rule On Transgender Bathroom Assignments

 In Adams v. School Board of St. Johns County, Florida, (11th Cir., Aug. 7, 2020), the U.S. 11th Circuit Court of Appeals by a 2-1 vote held that a Florida high school's policy that prevented a transgender male from using the boy's bathroom violates the Equal Protection Clause as well as Title IX. The court said in part:

[W]e assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The majority noted that the school relies on the student's sex designation on school enrollment forms, and not on their birth certificates. The majority went on:

 A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.

Chief Judge Pryor dissented, saying in part:

By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms.

Lambda Legal issued a press release announcing the decision.

23 States Sue HHS Over Rollback of Anti-Discrimination Protections In Health Care

Attorneys general representing 22 states and the District of Columbia filed suit yesterday challenging the Trump Administration's recently-adopted rules under the Affordable Care Act and under Title IX which roll back anti-discrimination provisions protecting, among others, transgender individuals and those who have accessed abortion services. The complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 7/20/2020), contends that the new rules deny equal protection of the laws and that their adoption was in violation of various provisions of the Administrative Procedure Act. Courthouse News Service reports on the lawsuit. New York's Attorney General issued a press release announcing the filing of the lawsuit.

Court Rejects School's Transgender Bathroom Restrictions

In Grimm v. Gloucester County School Board, (ED VA, Aug. 9, 2019). a Virginia federal district court held that a school system violated Title IX and the equal protection clause of the 14th Amendment when it prevented a transgender male student from using rest rooms that correspond with his gender identity. The court rejected the school's argument that its policy is substantially related to protection of student privacy.  The court also issued a permanent injunction requiring the school to update the student's school records to reflect the male gender listed on the student's updated birth certificate. Washington Post reports on the decision.

Transgender Student May Intervene In Suit Between Prof and University

In Meriwether v. Trustees of Shawnee State University, 2019 U.S. Dist. LEXIS 78771 (SD OH, May 9, 2019), an Ohio federal district court allowed a transgender student and an advocacy organization representing LGBTQ students to intervene in a lawsuit brought by a faculty member against the university over the university's enforcement of its non-discrimination policy.  The university disciplined plaintiff, a philosophy professor, for violating its policy that requires faculty to refer to students using pronouns consistent with the student's self-asserted gender identity. Plaintiff sued claiming that:

He is a "professing evangelical Christian" and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individual's gender can be changed after the moment of conception. Because of his sincerely-held religious beliefs, he objects to communicating what he believes to be "a University-mandated ideological message regarding gender identity" that he does not believe and which "contradicts (and would force him to violate) his sincerely held religious beliefs."

In allowing intervention by the petitioners. the court found that the University will not adequately represent petitioners' interests, saying in part:

Shawnee State argues only that the Non-discrimination Policy challenged by plaintiff is a neutral rule of general applicability that is part of its obligations under Title IX and Title VII, not that the policy protects the rights of Doe and other transgender students.... Doe, the transgender student who filed the discrimination complaint which led to plaintiff's written warning, and SAGA, which represents transgender students like Doe, have an interest in insuring that Shawnee State's policies are construed and applied so as to protect their rights as transgender students. 

HHS Is Considering Eliminating Title IX Protection For Transgender Indivudials

The New York Times reports today that the Trump Administration is proposing another step to eliminate anti-discrimination protection for transgender individuals:

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times....

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

Challenge To School's Transgender Policy Is Rejected

In Parents for Privacy v. Dallas School District No. 2, (D OR, July 24, 2018), an Oregon federal district court in a 56-page opinion rejected an array of challenges to a school district's policy that allows transgender students to use restrooms, locker rooms, and showers that match their gender identity rather than
their biological sex assigned at birth.  Plaintiffs alleged that the policy violates the Administrative Procedure Act, the right to privacy, Title IX, Oregon state law, parents’ rights to direct the education and upbringing of their children, and the First Amendment and RFRA. Responding to these claims, the court said in part:

... [H]igh school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs. The potential threat that a high school student might see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions in a restroom, shower, or locker room does not give rise to a constitutional violation....

It is within Parent Plaintiffs’ right to remove their children from Dallas High School if they disapprove of transgender student access to facilities. Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severely diminished....

In this case, the law is neutral and generally applicable with respect to religion. There are no allegations that District forced any Plaintiff to embrace a religious belief, nor does the Plan punish anyone for expressing their religious beliefs. In any event, Plaintiffs do not have standing to bring this claim.

Court Refuses To Block School's Transgender Rest Room Policy

In Students & Parents for Privacy v. United States Department of Education, (ND IL, Dec. 29, 2017), an Illinois federal district court adopted a magistrate's recommendation (see prior posting)  and refused to block a school district from allowing transgender students to use the restrooms and locker rooms of the gender with which they identify. The court pointed out that a good deal of the case was mooted by developments since the magistrate's recommendation:

First, Student A graduated from Fremd High School and the Locker Room Agreement pertaining to her was accordingly terminated....] Second, the United States Department of Education Office for Civil Rights and the United States Department of Justice Civil Rights Division withdrew the administrative guidance that Plaintiffs had challenged in this action, and issued a joint guidance letter instructing that the views conveyed in the earlier materials should not be relied upon while the issue is under further consideration....

The court went on to hold:

In any event ..., the Magistrate Judge correctly determined that Plaintiffs had not shown a reasonable likelihood of success on the merits that allowing transgender students access to sex-segregated facilities based on their gender identity violates Title IX or the privacy rights of the Student Plaintiffs with whom such facilities are shared, whether such facilities are restrooms or locker rooms. 

DOE Issues New Instructions On Transgender Students' Rights Under Title IX

As previously reported, in February the Trump Administration withdrew controversial Obama Administration's Guidance documents on rights of transgender students under Title IX.  The withdrawn documents called for transgender students to have access to sex-segregated bathrooms and locker rooms consistent with their gender identity.  On June 6 the Department of Education's Office of Civil Rights issued a memo (full text) setting out new "Instructions to the Field re Complaints Involving Transgender Students."  The new Memo emphasizes that withdrawal of the Obama Administration guidance documents "does not leave students without protections from discrimination, bullying or harassment."

The Memo provides that DOE may open an investigation in various situations, including cases in which gender-based harassment has created a hostile environment for a transgender student.  The Memo then sets out examples:

acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes of a transgender student created a hostile environment....

Liberty Counsel, a conservative Christian advocacy organization, this week issued a press release criticizing DOE's new Memo, saying in part:

“Title IX does not require a school district or teacher to call students by false gender pronouns,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Title IX is silent regarding the use of pronouns, and it cannot be a violation to refer to students by pronouns consistent with their actual sex. Requiring false pronoun usage by teachers is a compelled speech violation for teachers and compelling students to participate in a lie violates their right to free speech. I thought we had seen the last of this nonsense coming out of the Department of Education. I call upon Betsy DeVoss to end this new policy,” said Staver.