The national debate over the rights of transgender students to use school restrooms and locker rooms of their gender identity, and the authority of the federal government’s guidance on the topic, grew a bit more uncertain this week.
The federal district judge in Texas who in August issued a nationwide injunction blocking the Obama administration’s guidance meant to expand transgender students’ access to restrooms and locker rooms in schools on Tuesday sought to clarify the scope of his order.
Judge Reed O’Connor of the U.S. District Court in Wichita Falls, Texas, issued an order to clarify that “the preliminary injunction applies nationwide,” and could not be limited just to the 13 states that have challenged the transgender guidance.
Meanwhile, a federal magistrate judge has recommended against a preliminary injunction sought by a group of parents and students to block a school district in that state from permitting transgender students to use the restrooms or locker rooms corresponding to their gender identity.
U.S. Magistrate Judge Jeffrey T. Gilbert of Chicago issued an 82-page opinion, also on Oct. 18, that explores many angles of the transgender debate in the nation’s schools, including the U.S. Department of Education’s policy guidance from earlier this year. And it offers more discussion of the use of locker rooms (as opposed to restrooms alone) by transgender students than in some other high-profile cases.
Gilbert generally sided with transgender advocates and the Obama administration, though his opinion is merely a recommendation that must be approved by a federal district judge. (His opinion would also seem to be in tension with O’Connor’s nationwide injunction against the federal guidance.)
“Recent rulings by courts around the country ... evince a trend toward a more expansive understanding of sex in Title IX [of the Education Amendments of 1972] as inclusive of gender identity,” Gilbert wrote in his opinion and recommendation in Students and Parents for Privacy v. U.S. Department of Education. “Therefore, the court cannot say with confidence that plaintiffs have a likelihood of success on the merits of their claim that [the Education Department’s] interpretation of Title IX is not in accordance with law or entitled to deference.”
The plaintiff group is made up of parents, students, and prospective students of Township School District No. 211 in suburban Chicago and is represented by the Alliance Defending Freedom. The group sued to block a policy of the 12,000-student district that allows transgender students to use restrooms consistent with their gender identity. The suit also seeks to block an agreement the Education Department entered into with District 211 in 2015 to allow a transgender girl identified as Student A to use the girls’ locker rooms at William Fremd High School in Palatine, Ill.
“The court,” Gilbert wrote, “finds plaintiffs have not shown they have a likelihood of success on the merits of their claim that District 211 or the federal defendants are violating their right to privacy under the United States Constitution or that District 211 is violating Title IX because transgender students are permitted to use restrooms consistent with their gender identity and Student A is allowed to use the girls’ locker rooms at Fremd High School.”
“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,” Gilbert said.
Gilbert’s recommendations go to U.S. District Jorge L. Alonso of Chicago, who will hear objections from the plaintiffs and decide whether to adopt the opinion as his own.
Meanwhile, in the Oct. 18 order in Texas v. United States, O’Connor responded to various motions by the Obama administration to clarify his Aug. 21 nationwide injunction.
“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate,” O’Connor wrote. “Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. ... Defendants are a group of agencies and administrators capable of enforcing their Guidelines nationwide, affecting numerous state and school district facilities across the country.”
O’Connor said his order should not otherwise affect the missions of agencies such as the Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission to enforce civil rights laws, including on sex discrimination.
“The injunction is limited to the issue of access to intimate facilities,” O’Connor said. “Defendants are enjoined from relying on the guidelines, but may offer textual analyses of Title IX and Title VII in cases where the government and its agencies are defendants or where the United States Supreme Court or any Circuit Court request that Defendants file amicus curiae briefing on this issue.”
[UPDATE Friday 11:15 a.m.: The Obama administration on Oct. 20 filed a notice of appeal with the U.S. Court of Appeals for the 5th Circuit, in New Orleans, indicating that it will appeal Judge O’Connor’s Aug. 21 and Oct. 18 orders in the case by Texas and other states.]
The opinions come as the U.S. Supreme Court is considering whether to take up the appeal of a Virginia school district that is seeking to avoid the federal guidance on transgender student rights.
A version of this news article first appeared in The School Law Blog.