How Will Title VII Be Impacted by Nationwide Injunction on Fed’s Transgender Bathroom Policy?
A federal judge in Texas has reaffirmed his nationwide injunction against the federal government, which was precipitated by a letter from the Departments of Justice and Education earlier this year that told schools they must “immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding.” As a result, more than a dozen states had sued the EEOC and the U.S. Departments of Labor, Education, and Justice, and various agency officials, challenging the government’s assertions that Title VII and Title IX require that all persons must be afforded the opportunity to have access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex. The states also claimed the government said that employers that “refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII.”
Earlier injunction. In essence, the states argued that the federal government’s interpretation of the definition of “sex” in the various written directives as applied to Title VII and Title IX is unlawful and has placed them in legal jeopardy. The district court agreed, finding that the government had failed to comply with the Administrative Procedure Act by foregoing its notice and comment requirements and issuing directives that “contradict the existing legislative and regulatory texts.” It issued a nationwide injunction.
Clarification. Now the judge has clarified, to a limited extent, just what the injunction means, but he refused to narrow the injunction to only those states which had filed suit. The issues remaining to be clarified were, the court said, (1) whether the federal Guidelines are enjoined in total or whether the principle of severability applies to them; (2) whether the injunction applies to Title VII investigations, particularly as it applies to workplaces where school teachers or school staff may or must use the same intimate facilities as students; (3) whether the injunction applies to OSHA or DOL activity; and (4) whether the injunction prevents government agencies from carrying out their statutory duties, which traditionally fall within their core missions to prevent various forms of discrimination.
After reiterating its power to impose a nationwide injunction, the court specified that its order “did not purport to alter any statute or statutory duties” the defendants may exercise in pursuit of their governmental duties under Title VII, Section 504 of the Rehab Act of 1973, and Title II of the ADA. Rather, the government is “simply prevented from using the Guidelines to argue that the definition of ‘sex’ as it relates to intimate facilities includes gender identity,” said the court. Thus, the injunction neither affects EEOC’s fulfillment of its statutory duties, nor the government’s ability to enforce anti-discrimination statutes nationwide, including programs addressing race, national origin, or disability discrimination.
The order further clarified that the federal agencies’ “core missions to combat discrimination based on race, national origin, or disability, and the EEOC’s statutory duties are not otherwise affected by the preliminary injunction.” It reiterated that the injunction is limited to the issue of access to intimate facilities. The court said the government was 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.”
Finally, the court ordered the parties to brief the remaining issues of whether the Guidelines were enjoined in total or whether the principal of severability applies to them; whether the injunction implicates Title VII in any manner (and specifically where school employees and staff may share intimate facilities with students); and whether OSHA or DOL activity is implicated by the injunction.
Reposted with permission from Wolters Kluwer.
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