Another federal court, this one in Texas, has ruled that the U.S. Department of Education cannot enforce its most recent Title IX guidance. Unlike earlier cases, this ruling is not a preliminary injunction, but granted judgment to the State of Texas on the merits in a 113-page decision.
The court first noted that the State of Texas was challenging not formal rules, but "guidance documents" consisting of a "Dear Colleague" letter, a Fact Sheet, and a Notice of Interpretation. In all of those documents, the DOE stated its intention of applying to Title IX cases the ruling in Bostock v. Clayton County, in which case the US Supreme Court found transgender expression protection by Title VII.
The court first considered the question of whether the guidance documents are final agency actions. Other courts have dealt with only the substantive issue of whether Title IX includes transgender identity, so this was a question of first impression. The court concluded that the guidance documents are final agency action. After rejecting other procedural claims of the DOE, the court found that because the DOE promulgated the documents without the notice-and-comment procedure required for agency action, they were outside the DOE's authority.
On the application of Bostock, the court found that DOE's interpretation is unlawful. "The Guidance Documents' interpretation of 'sex' and the accompanying requirement that schools treat 'gender identity' the same as biological sex flouts Title IX." Reviewing the rules of statutory construction and applying them to the guidance documents, the court concluded that when Congress enacted Title IX, it intended the statute to apply only to biological sex. Any change in interpretation is a matter for Congress, not an administrative agency. "[T]he Department lacks the authority to rewrite Title IX and decide the major policy question of whether discrimination on the basis of sex should include gender identity."
These hard-fought cases will continue to filter through the courts, with almost inevitable splits among the appellate courts. Until the U.S. Supreme Court decides to weigh in, schools should consult with attorneys about what rules apply in their particular state.
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