Within days of each other, two federal district judges have issued preliminary injunctions requiring public schools to allow transgender students to use restrooms consistent with the students’ gender identity. U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, based in Cincinnati, issued his order on September 26 against the Highland Local School District on behalf of a “Jane Doe” 11-year-old elementary school student, in Board of Education v. U.S. Department of Education, 2016 U.S. Dist. LEXIS 131474, 2016 WL 5239829. U.S. District Judge Pamela Pepper of the Milwaukee-based Eastern District of Wisconsin, issued her order on September 22 against the Kenosha Unified School District on behalf of Ashton Whitaker, a high school student, in Whitaker v. Kenosha Unified School District No. 1, 2016 U.S. Dist. LEXIS 129678, 2016 WL 5372349. Jane Doe is a transgender girl, Ashton Whitaker a transgender boy.
Although both cases are important, producing essentially the same results under Title IX and the Equal Protection Clause of the 14th Amendment, Judge Marbley’s ruling is more significant because the judge sharply questioned the jurisdictional basis for a nationwide injunction issued on August 21 by U.S. District Judge Reed O’Connor of the Northern District of Texas, Wichita Falls, which ordered the Obama Administration to refrain from initiating investigations or enforcement of violations of Title IX of the Education Amendments of 1972 based on gender identity discrimination. O’Connor was ruling in a case initiated by Texas in alliance with many other states challenging the validity of the Obama Administration’s “rule” that Title IX, which prohibits sex discrimination by educational institutions that receive federal funds, prohibits gender identity discrimination and requires schools to allow transgender students to use facilities consistent with their gender identity.
Neither the Highland nor Kenosha cases were affected by O’Connor’s order in any event, since these cases were already under way before O’Connor issued his order and they involved district court complaints filed by the individual plaintiffs, not by the Department of Education.
The Doe v. Highland case before Judge Marbley is in part a clone of the Texas case pending before O’Connor. When a dispute arose about the school’s refusal to allow a transgender girl to use the girls’ restrooms and the Department of Education became involved in response to a complaint by the girl’s parents, the school district, abetted by Alliance Defending Freedom (ADF), the “Christian” law firm that is also providing representation to other challengers of the Administration’s position, rushed into federal district court to sue the Department of Education and seek injunctive relief.
As the case progressed, Jane Doe’s parents moved on her behalf to intervene as third-party plaintiffs against the school district. ADF pulled in many of the states that are co-plaintiffs in the Texas case and a clone case brought in federal district court in Nebraska, and moved to make them amicus parties in this case. At the same time, pro bono attorneys from Pillsbury Winthrop Shaw Pittman LLP, a large firm based in Washington, D.C., together with local counsel from Columbus, Ohio, organized an amicus brief by school administrators from about twenty states in support of Jane Doe. After being allowed to intervene as a plaintiff, Doe moved for a preliminary injunction to require the Highland Schools to treat her as a girl and allow her to use appropriate restrooms.
Judge Marbley first confronted the federal government’s argument that the court did not have jurisdiction over the Highland school district’s attack on the Administration’s interpretation of Title IX. Unlike Judge O’Connor in Texas, Judge Marbley concluded that the government was correct. If a school district wants to attack the government’s interpretation of Title IX, he found, it must do so in the context of appealing an adverse decision by the Department of Education ordering it to comply with the interpretation or risk losing federal funding. Marbley pointed out that under the administrative process for enforcement of Title IX, no school would lose funding before a final ruling on the merits is rendered, a process that would involve administrative appeals within the Department followed by an appeal to the U.S. Court of Appeals with a potential for Supreme Court review of a final ruling by the court. Thus, the school district had no due process argument that it stood to lose funding without being able to seek judicial relief if it were deprived of the ability to sue directly in the district court. Marbley found that there was no authorization under the statute or the Administrative Procedure Act (APA) for a school district to file a lawsuit directly in federal district court challenging an interpretation of Title IX.
Part of ADF’s argument in its lawsuits challenging the Obama Administration’s guidance to the school districts is that by not embodying this interpretation in a formal regulation, the Administration had improperly evaded judicial review, since the APA authorizes challenges to new regulations to be filed promptly in federal courts of appeals after final publication of the regulation in the Federal Register. ADF argued that the Guidance was, in effect, a regulation masquerading as a mere “interpretation.” Judge O’Connor bought the argument, but Judge Marbley did not.
Marbley was dismissive of Judge O’Connor’s determination that he had jurisdiction to hear the Texas case. “The Texas court’s analysis can charitably be described as cursory,” he wrote, “as there is undoubtedly a profound difference between a discrimination victim’s right to sue in federal district court under Title IX and a school district’s right to challenge an agency interpretation in federal district court. This Court cannot assume that the first right implies the second.” Marbley went on to discuss in detail Supreme Court rulings on the question whether there was a private right of action under various federal statutes that did not expressly authorize lawsuits in the district courts, and the circumstances under which such authorization can be found by implication, as the courts have done to allow students to file Title IX lawsuits. Marbley rejected the Highland school district’s argument that once Jane Doe had intervened, she would provide a basis for the court to assert jurisdiction over the school district’s claim. Actually, he pointed out, the school district could raise its arguments against the Obama Administration’s interpretation of Title IX in response to Jane Doe’s lawsuit, and need not maintain a lawsuit of its own. Thus, he concluded, the school district’s complaint should be dismissed on jurisdictional grounds.
In both cases, the attorneys for the transgender students argued alternatively under Title IX and under the Equal Protection Clause. In both cases, they argued that because gender identity discrimination is a form of sex discrimination, the Equal Protection analysis should receive the same “heightened scrutiny” that courts apply to sex discrimination claims, which throws the burden on the government to show that it has an exceedingly important interest that is substantially advanced by the challenged policy.
Here the cases diverged slightly in the judges’ legal analysis. Both judges found that the transgender plaintiffs were likely to succeed on the merits of their claims under both Title IX and the Equal Protection clause, that they were suffering harm as a result of the challenged policies, and that any harm the school districts would suffer by issuance of preliminary injunctions was outweighed by the plaintiffs’ harm if injunctions were denied. In addition, both judges found that the injunctions were in the public interest. But Judge Marbley additionally found that heightened scrutiny applied, while Judge Pepper, more conservatively, reached her conclusion by applying the rational basis test. In either case, however, the judges found that the school districts’ justifications for their exclusionary policies lacked sufficient merit to forestall preliminary relief against them.
Significantly, Judge Marbley’s conclusion that heightened scrutiny applied to this case drew support from the Supreme Court’s marriage equality ruling, Obergefell v. Hodges. He used Obergefell to question the continuing relevance of prior court of appeals analyses of equal protection “in light of Obergefell’s emphasis on the immutability of sexual orientation and the long history of anti-gay discrimination. Like the district courts that examined suspect classification based on sexual orientation,” he continued, “this Court will proceed to conduct its own analysis of the four-factor test to determine whether heightened scrutiny applies to a transgender plaintiff’s claim under the Equal Protection Clause.” Marbley based his analysis of the four-factor test on a district court ruling last year in New York, Adkins v. City of New York, which found all factors to be satisfied to justify heightened scrutiny, including a finding that “transgender people have ‘immutable and distinguishing characteristics that define them as a distinct group” for purposes of analyzing their equal protection claims.
Significantly, both judges accorded great weight to the Obama Administration’s Guidance, and both judges also found persuasive the Richmond-based 4th Circuit Court of Appeals’ ruling in the Gavin Grimm case that district courts should defer to the Administration’s interpretation due to the ambiguity of existing regulations about how to deal with transgender students under Title IX. In light of such ambiguity, the federal administrators would enjoy deference so long as they adopted an interpretation of the statute and regulations that is not inconsistent with the purpose of the statute. The judges rejected the argument that because Congress in 1972 did not intend to ban gender identity discrimination, administrators and judges decades later could not adopt such an interpretation of “discrimination because of sex.”
Although the Supreme Court has stayed the injunction issued by the district court in the Gavin Grimm case while the Gloucester (Virginia) school district’s petition for review of the 4th Circuit’s ruling is pending before the Supreme Court, Judge Marbley pointed out that the stay does not affect the status of the 4th Circuit’s decision as a persuasive precedent. He also pointed out the unusual step taken by the Justice Stephen Breyer of writing that he had agreed to provide the necessary fifth vote for a stay to “preserve the status quo” as a “courtesy” to the four conservative justices. The Highland school district argued that the stay “telegraphed” that the Supreme Court was going to grant review of the 4th Circuit’s decision, but, wrote Marbley, “even if Highland has somehow been able to divine what the Supreme Court has ‘telegraphed’ by staying the mandate in that case, this Court unfortunately lacks such powers of divination.” Furthermore, he wrote, “This Court follows statements of law from the Supreme Court, not whispers on the pond.”
Judge Marbley also accorded great weight to the amicus brief filed on behalf of school administrators from around the country. In this brief, they explained how they had implemented the policies required by the Education Department to accommodate transgender students. They pointed out that allowing transgender students to use appropriate facilities had not created any real problems. They argued that this was a necessary step for the mental and physical health of transgender students, and did not really impair the privacy of other students. Furthermore, in the more than twenty school districts joining in this brief, the new policy had not in any case led to an incident of a sexual predator gaining access to a restroom under the pretext of the policy and harming any student. Thus, while acknowledging that school districts can be legitimately concerned about the health and safety of students, the courts could conclude that any such risk was conjectural and not borne out by experience.
The judges also noted other district court decisions over the past year ordering schools to allow transgender students to use appropriate facilities, including a recent ruling in one of the North Carolina cases, requiring the University of North Carolina to ignore H.B.2, that state’s infamous “bathroom bill,” and allow the three individual transgender plaintiffs to use appropriate restrooms at the university while the case is pending before the court.
Judge Marbley’s in-depth analysis of the jurisdictional issues provides a roadmap for a challenge before the Houston-based 5th Circuit Court of Appeals to Judge O’Connor’s nationwide injunction. The Texas lawsuit attempted to short-circuit the requirements of the Administrative Procedure Act by dragging an interpretive dispute into the federal district court when the relevant statute provides an administrative forum for hearing and deciding such issues before appealing them to the Courts of Appeals.
Judge Marbley was appointed to the district court by President Bill Clinton. Judge Pepper was appointed by President Barack Obama.