Trump Administration Withdraws Obama Title IX Transgender Guidance

Today the Trump Administration withdrew the controversial Obama Administration's Guidance on rights of transgender students under Title IX. In a Joint Letter (full text) from the Department of Justice and Department of Education, the Trump Administration formally took no position on whether Title IX protects transgender students.  The Letter reads in part:

These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....

In addition, 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.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.

The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal.  Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX.  The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action.  The two issues are:

... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions.  The new Joint Letter does contain a paragraph expressing concern for student rights:

Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.

Both Attorney General Sessions and Secretary DeVos issued separate statements as well.  Sessions' statement (full text) reads in part:

The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.

DeVos' statement (full text) reads in part:

I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

Today's Joint Letter only refers to the interpretation of Title IX.  It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act.  The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.

Texas High School Rules Force Transgender Male Wrestler To Compete In Girl's League

In Texas, high school athletics is governed by the University Interscholastic League (UIL). Rules of the UIL require student-athletes to compete as the gender listed on their birth certificate.  Another rule specifically prohibits boys from wrestling girls. AP reported this week on Mack Beggs, a transgender high schooler who is transitioning from female to male who, under these rules, is required to compete as a female. Beggs won the high school regional wrestling competition after her opponent forfeited rather than wrestle Beggs. Beggs is taking testosterone as part of her transitioning. Earlier this month, the parent of another wrestler filed a lawsuit against the UIL seeking to have Beggs disqualified for using steroids, saying that allowing Beggs to wrestle girls creates a risk of bodily harm.  The Texas Education Code allows steroid use when administered by a medical practitioner for a valid medical purpose.

Trump's EEOC Continues To Fight Transgender Employment Discrimination

Slate reported yesterday that it has become clear that the EEOC under the Trump Administration will continue to fight employment discrimination against transgender individuals.  In a brief (full text) filed with the 6th Circuit on Feb. 10, the EEOC argued that Title VII's prohibition on "sex" discrimination includes discrimination based on transgender status and/or transitioning.  It also argued that religious beliefs are not a basis for discriminating against transgender individuals. The brief comes in an appeal in EEOC v. R.G, a suit in which a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge that it engaged in gender stereotyping when it dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

UPDATE: I should add that it has become clear that the EEOC will continue to take this position for now.  Because there is a vacancy on the Commission, a Democratic commissioner's position comes up for appointment later this year and the General Counsel position is vacant, the Commission could change its position in the future. The Slate article points out these possibilities.

Trump Justice Department Withdraws Objections To Nationwide Injunction In Transgender Bathroom Case

As previously reported, last year a Texas federal district court issued a nationwide preliminary injunction barring the federal government from enforcing Guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity.  In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity. Subsequently the Obama administration asked the court for a partial stay that would limit the injunction, pending appeal, to the 13 states that were plaintiffs in the case.  As reported by AP, a hearing on that motion was to have been held Feb. 14.  However on Friday, the Justice Department withdrew the government's request for a partial stay, and indicated it was "currently considering how best to proceed in this appeal." (Full text of court filing.)

Last week, the U.S. 9th Circuit Court of Appeals approved a similar nationwide injunction against President Trump's Executive Order barring travel from seven Muslim countries. (See prior posting.) In its unsuccessful motion for a stay (full text, see pg. 24), the Justice Department argued that a nationwide injunction was improper because it went beyond providing relief to the plaintiffs in the case.

Barber Shop That Refused Transgender Customer on Religious Grounds Settles

In a press release issued last week, Lambda Legal announced it had reached a settlement with a California barber shop that had refused to cut the hair of a transgender man because the owner perceived the customer to be a female. The owner later told reporters that he had religious objections to cutting women's hair, saying that God made a clear distinction between genders and "it’s a shame for a man to have long hair, but if a woman has long hair, it’s her glory." The stipulated final judgement (full text) in Oliver v. The Barbershop R.C., Inc., (CA Super. Ct., Jan. 19, 2017), recites that defendants violated California's Unruh Civil Rights Act and enjoins them from discriminating on the basis of sex, including on the basis of actual or perceived gender, gender identity or gender expression.

Boy Scouts Will Admit Transgender Males

The Boy Scouts of America announced yesterday that it will accept and register youth in Cub Scout and Boy Scout programs based on the gender identity indicated on the application. This reverses a century old policy that relied on gender stated on the birth certificate to determine eligibility for single-gender programs.  New York Times reports on these developments. Under the new policy a trangender boy was invited back into a New Jersey Cub Scout pack according to NorthJersey.com.

British Court Denies Transgender Parent Contact With Children Because of Religious Community's Reaction

A British Family Court in J v. B and the Children, (EWFC, Jan. 30, 2017), has rejected the petition of an Orthodox Jewish father, a member of the Manchester Charedi community who left home to live as a transgender woman, to have direct contact with his five children.  The court limited the father's contact to letters four times a year to the children. The court said in part:

These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education.... Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.....

I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra‐Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.

The Guardian reports on the decision. [Thanks to Mel Kaufman and Paul deMello for the lead.]

Catholic Hospital Sued Over Refusal Of Sex Reassignment Surgery

Lambda Legal announced yesterday that it has filed a lawsuit in New Jersey federal district court against a Catholic hospital that refused, on religious grounds, to allow a surgeon to perform a hysterectomy on a transgender man as part of his gender reassignment.  The complaint (full text) in Conforti v. St. Joseph's Healthcare System, (D NJ, file 1/5/2017), contends that the refusal discriminates on the basis of sex and gender identity in violation of the New Jersey Law Against Discrimination, and that it constitutes discrimination on the basis of sex in violation of Sec. 1557 of the Affordable Care Act.  According to AP, the hospital says it makes decisions in conformance with ethical and religious guidelines of the U.S. Conference of Catholic Bishops.

Another Challenge Filed To HHS Rule on Transgender and Pregnancy Termination Discrimination

Another lawsuit has been filed challenging the Department of Health and Human Services rules that bar discrimination on the basis of gender identity or termination of pregnancy in the delivery of medical services by, among others, health facilities receiving federal financial assistance. Plaintiffs in this suit are Catholic organizations, including the entity that administers self-funded health plans for Catholic employers. The complaint (full text) in Catholic Benefits Association v. Burwell, (D ND, filed 12/28/2016) alleges that the rule requires plaintiffs to act in contravention of Catholic teachings:

HHS has taken a little-remarked-upon section of the ACA that prohibits discrimination “on the basis of sex” and turned it into a mandate that coerces Catholic hospitals and other healthcare providers into performing, supporting, and even covering gender transition procedures, and coerces other Catholic employers, even Catholic dioceses, into covering them. The 1557 Rule also prevents Catholic entities from discriminating on the basis of “termination of pregnancy,” a phrase that likely creates an abortion mandate.

Catholic Review reports on the lawsuit.

Last month, a similar challenge was filed in the same North Dakota federal district court by different plaintiffs. (See prior posting). Last week a Texas federal district court issued a nation-wide preliminary injunction against enforcement of the rules being challenged. (See prior posting).

Court Enjoins Health Care Gender Identity and Abortion Non-Discrimination Rule

Today, in a 46-page opinion, a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. In Franciscan Alliance, Inc. v. Burwell, (ND TX, Dec. 31, 2016), a Texas federal district court, in a suit by eight states and three private health care providers, first held that the Department of Health and Human Services exceeded its authority in interpreting the statutory ban on "sex" discrimination to include discrimination on the basis of gender identity, stating:

Title IX and Congress’s incorporation of it in the ACA unambiguously adopted the binary definition of sex.

The court also concluded that the health care providers have shown a substantial likelihood that the challenged Rule violates the Religious Freedom Restoration Act in requiring them to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs. Becket Fund issued a press release announcing the decision.

Judge Reed O'Connor who handed down the decision had previously issued a nationwide injunction baring enforcement of federal guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity. (See prior posting.)

North Carolina's Attempt To Repeal "Bathroom Bill" Fails

As reported by the Washington Post, yesterday's special session of the North Carolina legislature that had been called to repeal the state's controversial anti-transgender "bathroom bill" was unsuccessful in doing so.  It appeared that a compromise had been worked out to repeal the law that prevents transgender individuals from using school and government office building restrooms that match their gender identity. (See prior posting.)  The city of Charlotte repealed its local non-discrimination ordinance that had triggered the state legislature's action.  However, the state repeal bill introduced in the legislature included a six-month moratorium on any city enacting a nondiscrimination ordinance to protect LGBT rights.  That limit was unacceptable to Democrats in the legislature.  Senate President Pro Tempore Phil Berger blamed the failure of the repeal on the Democrats, saying:

Their action proves they only wanted a repeal in order to force radical social engineering and shared bathrooms across North Carolina, at the expense of our state’s families, our reputation and our economy.

Title VII Can Cover Transgender Discrimination

In Mickens v. General Electric Co., (WD KY, Nov. 29, 2016), s Kentucky federal district court ruled that Title VII of the 1964 Civil Rights Act supports a claim for employment discrimination brought by a transgender African American male employee.  The court said in part:

Significantly, Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like.

WFPL yesterday reported on the decision.

Massachusetts Modifies Reference To Churches As Public Accommodations; Suit Dismissed

Alliance Defending Freedom announced that today the churches and pastors who are plaintiffs in Horizon Christian Fellowship v. Williamson filed a Notice of Voluntary Dismissal in their lawsuit after the Attorney General's Office made a change in its website and the Massachusetts Commission Against Discrimination made changes to language in a Guidance document on when a church can be considered a place of public accommodation subject to state's ban on discrimination on the basis of gender identity. Originally (see prior posting) the Gender Identity Guidance stated:

Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.

The revised Gender Identity Guidance reads:

The law does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights. See Donaldson v. Farrakhan, 436 Mass. 94 (2002). However, a religious organization may be subject to the Commonwealth’s public accommodations law if it engages in or its facilities are used for a “public, secular function.” Id.

Originally a page on the Attorney General's website had made a categorical reference to "houses of worship" as an example of a "place of public accommodation."  That reference has been dropped.  A letter from the chief of the state's Civil Rights Division explained why the changes were made.

Briefing Change In SCOTUS Transgender Case May Have Substantive Impact

In October, the U.S. Supreme Court granted certiorari in Gloucester County School Board v. G.G., a high profile case on bathroom choice by transgender students in schools receiving federal funds. (See prior posting.) Today SCOTUSblog reports that the Court, in an action that will have unusual impact has extended the time for filing briefs in the case.  The extension of time means that it is more likely that Justice Scalia's vacancy on the Court will be filled before the case is argued, eliminating the chance for a 4-4 split.  In addition, according to Amy Howe at SCOTUSblog:

[T]he schedule change ... means that the federal government’s position in the case will be determined by the Trump, rather than Obama, administration. Deference to the Obama administration’s interpretation of federal law has been a central feature of G.G.’s argument, and it was the basis for the lower court’s ruling in G.G.’s favor. The Trump administration will not take office in time to file a brief supporting the school board, but it could nonetheless reverse course before G.G. files his brief. Such a change could substantially alter the arguments that G.G. makes and the justices consider. Indeed, if the Trump administration does rescind the existing Department of Education letter or issue its own guidance on the question, the justices could opt to send the case back to the lower court for reconsideration in light of that new guidance.

Court Again Refuses To Narrow Injunction Against Title IX Transgender Guidelines

In State of Texas v. United States, (ND TX, Nov. 20, 2016), a Texas federal district court denied defendants' request for a partial stay of the court's previously issued nationwide preliminary injunction against enforcement of Department of Education Title IX Guidelines barring discrimination by schools on the basis of gender identity. This is the second time the court has refused to narrow its preliminary injunction. Defendants had sought removal of non-plaintiff states from the reach of the injunction. The court said in part:

The Court remains convinced that Plaintiffs, not Defendants, have shown a great likelihood of success on the merits of their claims....   The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which Defendants claim now includes gender identity—were promulgated more than forty years ago.... The federal government did not articulate, much less enforce, the Guidelines’ interpretation of sex as including gender identity for nearly fifty years after Title VII was passed in 1964 and the Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the Guidelines delayed until their legality is established.

Liberty Counsel issued a press release announcing the decision.

Mother Challenges State's Law On Emancipation of Minors

In a suit filed earlier this week in a Minnesota federal district court, the mother of a 17-year old challenges the Minnesota statute that allows minors who are living separate and apart from their parents or legal guardians and who are managing their own financial affairs to alone consent to their own personal medical, dental, mental and other health services.  The complaint (full text) in Calgaro v. St. Louis County, (D MN, filed 11/16/2016), challenges the furnishing of medical treatment to the 17-year old-- including furnishing prescription drugs and clinical treatment for gender transition from male to female. The complaint also challenges a determination by the minor's school district of emancipation so that the mother is not entitled to the teen's school records or to participate in the minor's educational decisions.  Plaintiff claims that, because there is no procedure for the parent to challenge the determination of emancipation that was made without court order, this deprives her without due process of her parental rights to make decisions on the care of her child. Thomas More Society announced the filing of the lawsuit. NBC News reports on the litigation.

Another Court Challenge To HHS Rules On Medical Services For Transgender Individuals

Following on a lawsuit filed in August (see prior posting), yesterday a lawsuit was filed by different plaintiffs challenging new rules (full text) adopted by the Department of Health and Human Services in May.  The rules bar discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance.  The complaint (full text) in Religious Sisters of Mercy v. Burwell, (D ND, filed 11/7/2016), filed by a religious order, a health care system, a Catholic university with a nursing program, and the state of North Dakota, alleges that the new rules violate various statutory and constitutional provisions. It says in part:

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs.... The Regulation also undermines the longstanding sovereign power of States such as North Dakota to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights.

Becket Fund issued a press release announcing the filing of the lawsuit.

Preliminary Injunction Against Transgender Student Access To Restrooms Is Denied

In Students and Parents for Privacy v. U.S. Department of Education, (ND IL, Oct. 18, 2016), an Illinois federal magistrate judge issued a report and recommendation denying a preliminary injunction sought by plaintiffs who wish to require suburban Chicago schools to segregate restrooms and locker rooms on the basis of students’ biological sex assigned at birth. The suit also seeks to enjoin the federal government from enforcing its rule requiring transgender students have access to rest room and locker rooms that conform to their gender identity. The court said in part:

The law in the Seventh Circuit concerning the meaning of the term “sex” as used in Title IX may be in flux. Just last week, the Seventh Circuit vacated a decision by a panel of that court that adhered to a longstanding interpretation of the word “sex” in ... Title VII of the Civil Rights Act of 1964 ... as very narrow, traditional and biological. Plaintiffs relied heavily on the now vacated panel decision.... Recent rulings by courts around the country including a district court in the Seventh Circuit evince a trend toward a more expansive understanding of sex in Title IX as inclusive of gender identity. Therefore, the Court cannot say with confidence that Plaintiffs have a likelihood of success on the merits.... 

High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs. In addition, sharing a restroom or locker room with a transgender student does not create a severe, pervasive, or objectively offensive hostile environment under Title IX given the privacy protections District 211 has put in place in those facilities and the alternative facilities available to students who do not want to share a restroom or locker room with a transgender student....

As previously reported, yesterday the U.S. Supreme Court agreed to review a case from the 4th Circuit raising similar issues.

Supreme Court Grants Review In Transgender School Bathroom Case

The U.S. Supreme Court today granted certiorari in Gloucester County School Board v. G.G., (Docket No. 16-273, cert. granted 10/28/2016) (Order List). The grant of review was limited to Questions 2 and 3 in the Petition for Certiorari.  In the case, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex. (See prior posting.)

Court Clarifies and Refuses To Narrow Injunction Against Federal Transgender Guidelines

As previously reported, in August a Texas federal district court issued a nationwide preliminary injunction preventing the federal government, particularly the Department of Education, from enforcing Guidelines issued earlier this year interpreting Title IX as barring discrimination by schools on the basis of gender identity. Now in State of Texas v. United States, (ND TX, Oct. 18, 2016), the court issued an opinion responding to a request for clarification and narrowing of the injunction.  The court refused to limit the injunction to the 13 states that are plaintiffs in the lawsuit, saying:

A nationwide injunction is necessary because the alleged violation extends nationwide.

The court also clarified that the injunction does not impact the EEOC's functions or activities other than preventing it from using the challenged Guidelines to argue that the definition of  "sex" as it relates to intimate facilities includes gender identity. The court ordered additional briefing by the parties on whether the Guidelines are enjoined in total or whether the principle of severability applies to them; whether the injunction impacts Title VII investigations when teachers or staff and students use the same bathrooms; and whether the injunction applies to activities of OSHA or the Department of Labor.  Texas Attorney General Ken Paxton issued a press release on the decision.