State AGs are once again taking a major partisan issue to the federal courts. On August 21, 2016, at the urging of the State AG of Texas, as well as the AGs or other representatives of ten other states, the United States District Court for the Northern District of Texas granted a preliminary injunction preventing nationwide implementation of guidance, issued under Title IX, by the Departments of Justice and Education regarding gender identity.
On May 13, DOE ad DOJ issued a "Dear Colleague" letter clarifying their interpretation of the applicability of Title IX (which prohibits discrimination on the basis of sex in educational programs receiving federal funding) to potential discrimination based on gender identity or transgender status. The letter stated that the two departments "interpret Title IX to require that when a student or the student's parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous records, the school will begin treating the student consistent with the student's gender identity." Further, the letter clarified that "there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity." A school's responsibilities would extend to the creation of a nondiscriminatory environment, use of appropriate pronouns, and appropriate accommodation in sex-segregated activities and facilities.
Days later, the AGs of Texas, Oklahoma and West Virginia sent a letter sharply criticizing the guidance, and on May 25, filed a complaint in the Federal District Court for Northern District of Texas. The lawsuit alleges principally that the "Dear Colleague" guidance is not guidance at all, but rather constitutes a regulation that must be promulgated via notice-and-comment rulemaking pursuant to the Administrative Procedures Act. In granting the injunction, United States District Judge Reed O'Connor found that the guidance was "legislative and substantive," and not merely interpretive.
Guidance vs. regulation disputes are familiar to administrative lawyers, but more interesting is the continuation of the trend of elected AGs fighting out battles on partisan issues in federal court. Such actions are not new, in part because, in representing the interests of an entire state, AGs can often sidestep prudential hurdles that stymie private litigants. In Massachusetts v. EPA, 549 U.S. 497 (2007), for example, the Commonwealth of Massachusetts was able to demonstrate standing — a common barrier to private plaintiffs in environmental cases — to sue EPA on the basis, inter alia, of loss of coastal territory due to sea level rise. Indeed, Judge O'Connor cited Massachusetts v. EPA in finding that plaintiff states had standing because of their "quasi-sovereign interests" in federal rulemaking. Similarly, in granting a preliminary injunction against implementation of President Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents last year, the Federal District Court for the Southern District of Texas focused on the states' "proprietary interests of their driver's license programs and cost [of] badly needed funds." Texas v. United States, 86 F. Supp. 591, 620 (S.D. Tx. 2015).
Regardless of which party wins the White House in November, we can expect state AGs from the opposing party to play a significant role in partisan fights yet to come.
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