The NCSL Blog

29

By Joellen Kralik

Major actions were taken in two different lawsuits related to bathroom access for transgender students last week.

picture of a bathroom stallA federal judge in Texas issued a nationwide injunction on August 21 blocking federal government agencies from taking action against school districts that don’t follow federal guidance issued on transgender bathroom policies in schools.In the decision, the judge found that the guidance had the effect of law and that it contradicts existing laws and rules. The judge also found that guidance was issued without giving states adequate notice or opportunity to comment.

In a separate lawsuit, a federal judge in North Carolina issued an injunction on August 26 barring the University of North Carolina system from enforcing the provisions of HB 2 related to restricting access to bathrooms for transgender students while the lawsuit is ongoing.

It is unclear how these actions will impact the outcomes of other current court cases, as these are just the latest in a string of legal and legislative actions impacting school bathroom access for transgender students.

Here is a timeline with information to help give context to last weeks actions:

  • 2014-2015: The U.S. Department of Education (ED) releases multiple Title IX guides stipulating that Title IX of the Education Amendment of 1972, which bans sex discrimination in schools, also protects students from discrimination on the basis of gender identity.
  • March 23, 2016North Carolina passes HB 2, restricting access to multiuser restrooms, locker rooms, and other sex-segregated facilities on the basis of a definition of sex or gender consistent with sex assigned at birth or “biological sex.” 
  • March 28, 2016: In CarecaƱo, et al. v. McCrory, advocacy groups initiate a lawsuit against the state of North Carolina, alleging discrimination against transgender people. 
  • April 19, 2016: In G.G. v. Gloucester County School Board, a panel of judges on the U.S. Court of Appeals for the Fourth Circuit Court rules that ED could interpret Title IX to include transgender people, meaning that Title IX protects the rights of transgender students to use sex segregated facilities consistent with their gender identity. The ruling allows a transgender high school student in Virginia to use the bathroom that corresponds with the student’s gender identity.
  • May 4, 2016: The U.S. Department of Justice (DOJ) writes letters to Governor McCrory and the North Carolina University system referencing the April decision and declaring that HB 2 violates Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Violence Against Women Reauthorization Act of 2013. DOJ gives McCrory and UNC until May 9, 2016, to agree not to enforce the law, or otherwise put federal education funding at risk.
  • May 9, 2016: North Carolina and DOJ initiate lawsuits against each other. North Carolina’s lawsuit against DOJ asks the federal courts to issue a declaratory judgment saying the state is not in violation of Title VII or of the Violence Against Women Reauthorization Act. DOJ’s complaint against the state of North Carolina, UNC and the North Carolina Department of Public Safety alleges they are discriminating against transgender individuals in violation of federal law as a result of the state’s compliance with and implementation of HB 2. 
  • May 13, 2016: In a jointly issued "Dear Colleague" letter, the U.S. Department of Education and DOJ provide guidance to all public schools. The guidance summarizes schools' Title IX obligations regarding transgender students and explains how U.S. Department of Education and DOJ evaluate a school's compliance with the obligations. One obligation listed in the letter is providing transgender students access to sex-segregated activities and facilities consistent with their gender identity.
  • May 25, 2016: Texas initiates a lawsuit aimed at blocking the federal government from enforcing the interpretation of Title IX described in the “Dear Colleague” letter. Texas is joined in the suit by Alabama, the Arizona Department of Education, Georgia, Louisiana, Maine Governor Paul LePage, Oklahoma, Tennessee, Utah, West Virginia, Wisconsin, and two school districts.
  • June 6, 2016: Now also joined by Mississippi and Kentucky, the plaintiffs in the Texas-initiated suit ask for an injunction suspending the federal regulations, arguing that they unfairly burden states and jeopardize safety.
  • June 7, 2016: In G.G. v. Gloucester County School Board, the school board asks the U.S. Supreme Court to hear the case.
  • July 8, 2016: Nebraska initiates a lawsuit, also aimed at blocking the federal government from enforcing their interpretation of Title IX. Nebraska is joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.
  • July 27, 2016: Washington state leads the filing of an amicus brief in response to the states suing the federal government over the Title IX guidance on access to bathrooms for transgender students. The brief argues against the injunction proposed by the plaintiffs in the Texas-initiated lawsuit. The states joining Washington include: California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, and Vermont.
  • Aug. 3, 2016: In G.G. v. Gloucester County School Board, the U.S. Supreme Court grants a stay to stop the student from using the restroom consistent with the student’s gender identity. The court’s order has no effect on any other case.
  • Aug. 21, 2016: A federal judge in the Texas-initiated lawsuit issues a nationwide preliminary injunction, temporarily blocking federal government agencies from taking action against school districts that don’t follow guidance issued in the “Dear Colleague” letter.
  • August 26, 2016: In CarecaƱo, et al. v. McCrory, a federal judge in North Carolina issues an injunction barring the University of North Carolina system from enforcing the provisions of HB 2 related to restricting access to bathrooms for transgender students while the lawsuit is ongoing.

Joellen Kralik is a policy associate in NCSL’s Education Program.

Email Joellen

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.