201 F. Supp. 3d 810
N.D. Tex.2016Background
- Thirteen states and two school districts challenged federal agencies (DOE, DOJ, DOL, EEOC and officials) over guidance treating “sex” to include gender identity for access to bathrooms, locker rooms, showers and other intimate facilities.
- Plaintiffs say the agencies’ May 2016 DOJ/DOE Dear Colleague Letter and related guidance conflict with Title IX and 34 C.F.R. § 106.33 (which permits separate facilities on the basis of sex) and bypassed APA notice-and-comment requirements, placing plaintiffs in legal jeopardy and forcing policy changes.
- Defendants argued the guidance is nonbinding interpretive guidance, merely stating agencies’ view of the law and not creating new legal obligations, and therefore is not final agency action subject to APA review.
- The court held a hearing and analyzed jurisdictional questions (standing, ripeness, final agency action) under the APA and the Canal preliminary-injunction factors from the Fifth Circuit.
- The district court concluded the guidance was final agency action, violated the APA by failing to follow notice-and-comment and by adopting an interpretation contrary to § 106.33, and granted a nationwide preliminary injunction enjoining enforcement of the guidance against Plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Ripeness / Final agency action (jurisdiction) | Plaintiffs are objects of the guidance; guidance forces policy changes and presents imminent injury to funding/operations | Guidance is advisory; no concrete enforcement or imminent injury; court should wait | Court: Plaintiffs have standing and the claims are ripe; the guidance is final agency action under Bennett/EEOC framework |
| APA notice-and-comment requirement | Guidance is legislative in effect: it imposes obligations, binds agencies and regulated parties, and thus required notice-and-comment | Guidance is interpretive/policy guidance exempt from notice-and-comment and does not carry force of law | Court: Guidance functions as substantive/legislative rule in practice and violated APA notice-and-comment requirements |
| Substance of agency interpretation / Auer deference | §106.33 and Title IX unambiguously refer to biological sex; agencies cannot reinterpret to include gender identity without rulemaking | The regulation is ambiguous as to transgender students; agencies’ interpretation is reasonable and entitled to deference | Court: §106.33 is not ambiguous; Auer deference not warranted; agencies’ interpretation is contrary to law |
| Preliminary-injunction factors (irreparable harm, balance, scope) | Agencies’ actions force policy changes, risk of funding loss, and usurp state/local authority—irreparable; nationwide relief needed | No imminent enforcement; injunction would impede agencies’ ability to combat discrimination; relief should be limited | Court: Plaintiffs showed likelihood of success and irreparable harm; balance/public interest favor injunction; issued nationwide preliminary injunction enjoining enforcement against Plaintiffs |
Key Cases Cited
- Texas v. Equal Employment Opportunity Comm’n, 827 F.3d 372 (5th Cir. 2016) (guidance can be final action and confer standing when it effectively binds regulated parties)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency interpretations of its own ambiguous regulations given controlling weight unless plainly erroneous)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action standard under the APA)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (constitutional standing requirements)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (ripeness and pragmatic approach to reviewability)
- Cannon v. University of Chicago, 441 U.S. 677 (1979) (Title IX does not preclude private causes of action)