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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

STATE OF TEXAS;

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HARROLD INDEPENDENT

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SCHOOL DISTRICT (TX);

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STATE OF ALABAMA;

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STATE OF WISCONSIN;

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STATE OF WEST VIRGINIA;

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STATE OF TENNESSEE;

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ARIZONA DEPARTMENT

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OF EDUCATION;

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HEBER-OVERGAARD

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UNIFIED SCHOOL DISTRICT (AZ); §

PAUL LEPAGE, GOVERNOR OF

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THE STATE OF MAINE;

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STATE OF OKLAHOMA;

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STATE OF LOUISIANA;

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STATE OF UTAH; and

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STATE OF GEORGIA

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Plaintiffs,

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v.

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UNITED STATES OF AMERICA;

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UNITED STATES DEPARTMENT

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OF EDUCATION; JOHN B. KING,

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JR., in his Official Capacity as United §

States Secretary of Education; UNITED §

STATES DEPARTMENT OF JUSTICE; §

LORETTA E. LYNCH, in her Official §

Capacity as Attorney General of the

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United States; VANITA GUPTA, in her §

Official Capacity as Principal Deputy §

Assistant Attorney General;

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UNITED STATES EQUAL

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EMPLOYMENT OPPORTUNITY

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COMMISSION; JENNY R. YANG, in §

her Official Capacity as the Chair of §

the United States Equal Employment §

Opportunity Commission; UNITED

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STATES DEPARTMENT OF LABOR; §

CIVIL ACTION NO. ______________

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THOMAS E. PEREZ, in his Official

§

Capacity as United States Secretary §

of Labor; DAVID MICHAELS, in his §

Official Capacity as the Assistant

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Secretary of Labor for Occupational

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Safety and Health Administration,

§

§

Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

The State of Texas, the Harrold Independent School District (Texas), the State of Alabama, the State of Wisconsin, the State of West Virginia, the State of Tennessee, the Arizona Department of Education, the Haber-Overgaard Unified School District (AZ), Paul LePage, in his official capacity as Governor of Maine, the State of Oklahoma, the State of Louisiana, the State of Utah, and the State of Georgia (collectively, “Plaintiffs”) seek declaratory relief against the United States of America, the United States Department of Education, John B. King, Jr., in his Official Capacity as United States Secretary of Education, the United States Department of Justice, Loretta E. Lynch, in her Official Capacity as Attorney General of the United States, Vanita Gupta in her Official Capacity as Principal Deputy Assistant Attorney General, the United States Equal Employment Opportunity Commission, Jenny R. Yang, in her Official Capacity as the Chair of the United States Equal Employment Opportunity Commission, United States Department of Labor, Thomas E. Perez, in his Official Capacity as United States Secretary of Labor; and David Michaels, in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and

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Health Administration. Plaintiffs include a diverse coalition of States, top State officials, and local
school districts, spanning from the Gulf Coast to the Great Lakes, and from the Grand Canyon to the Grand Isle, that stand behind the singular principle that the solemn duty of the Federal Executive is to enforce the law of the land, and not rewrite it by administrative fiat.
Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation.
I. PARTIES 1. Plaintiff State of Texas is subject to Title VII as the employer of hundreds of thousands through its constituent agencies. The State of Texas also oversees and controls several agencies that receive federal funding subject to Title IX. For example, the School for the Blind and Visually Impaired (“SBVI”) and School for the Deaf (“SD”) are statutorily created, independent state agencies. Tex. Educ. Code § 30.001 et seq. Both are governed by nine-member boards, appointed by the governor and confirmed by the senate, and both have superintendents appointed by the boards and “carry out the functions and purposes of [each] school according to any general policy the board[s] prescribe[].” Id. §§ 30.023(e) (SBVI); 30.053(e) (SD).

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Currently, SBVI has a total budget of $24,522,116, of which $4,789,974 is identified as federal funds, and SD has a total budget of $28,699,653, of which $1,957,075 is identified as federal funds. As another example, the Texas Juvenile Justice Department (TJJD) is a state agency subject to Title VII and Title IX. Responsible for overseeing youth correction facilities in the State of Texas, TJJD’s current budget is $314,856,698, which includes $9,594,137 in federal funding.
2. Plaintiff Harrold Independent School District (“Harrold ISD”) is a state independent public school district based in Harrold, Texas.
3. The Plaintiff States of Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, Georgia are similarly situated to the State of Texas in that one or more of the following circumstances is present: (1) they are employers covered by Title VII, (2) their agencies and departments are subject to Title IX, (3) their agencies and departments receive other federal grant funding that requires, as a condition of the grant, compliance with the Title IX provisions at issue in this lawsuit, or (4) they are suing on behalf of public educational institutions, departments, or agencies in their State are subject to Title IX.
4. Plaintiff Arizona Department of Education is the state agency responsible for “[t]he general conduct and supervision of the public school system” in Arizona. ARIZ. CONST. art. XI, § 2.
5. Plaintiff Heber-Overgaard Unified School District is a public school district with its principal office located in Heber, Arizona.
6. Plaintiff Paul LePage is the Governor of Maine and Chief Executor of

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the State of Maine Constitution and the laws enacted by the Maine State Legislature. 7. Defendant United States Department of Education (“DOE”) is an
executive agency of the United States and responsible for the administration and enforcement of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”).
8. Defendant John B. King, Jr., is the United States Secretary of Education. In this capacity, he is responsible for the operation and management of the DOE. He is sued in his official capacity.
9. Defendant United States Department of Justice (“DOJ”) is an executive agency of the United States and responsible for the enforcement of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. DOJ has the authority to bring enforcement actions to enforce Title IX. Exec. Order No. 12250, 28 C.F.R. Part 41 app. A (1980).
10. Defendant Loretta A. Lynch is the Attorney General of the United States and head of DOJ. She is sued in her official capacity.
11. Defendant Vanita Gupta is Principal Deputy Assistant Attorney General at DOJ and acting head of the Civil Rights Division of DOJ. She is assigned the responsibility to bring enforcement actions under Titles VII and IX. 28 C.F.R. § 42.412. She is sued in her official capacity.
12. Defendant Equal Employment Opportunity Commission (“EEOC”) is a federal agency that administers, interprets, and enforces certain laws, including Title VII. EEOC is, among other things, responsible for investigating employment and hiring discrimination complaints.

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13. Defendant Jenny R. Yang is the Chair of the EEOC. In this capacity, she is responsible for the administration and implementation of policy within the EEOC, including the investigating of employment and hiring discrimination complaints. She is sued in her official capacity.
14. Defendant United States Department of Labor (“DOL”) is the federal agency responsible for supervising the formulation, issuance, and enforcement of rules, regulations, policies, and forms by the Occupational Safety and Health Administration (“OSHA”).
15. Defendant Thomas E. Perez is the United States Secretary of Labor. He is authorized to issue, amend, and rescind the rules, regulations, policies, and forms of OSHA. He is sued in his official capacity.
16. Defendant David Michaels is the Assistant Secretary of Labor for OSHA. In this capacity, he is responsible for assuring safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. He is sued in his official capacity.
II. JURISDICTION AND VENUE 17. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this suit concerns the ultra vires revision of the term “sex” under multiple provisions of the United States Code. This Court also has jurisdiction to compel an officer of the United States or any federal agency to perform his or her duty pursuant to 28 U.S.C. § 1361.

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18. Venue is proper in the Northern District of Texas pursuant to 28 U.S.C. § 1391 because the United States, several of its agencies, and several of its officers in their official capacity are Defendants; a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District; and Plaintiff Harrold ISD (TX) is both an employer subject to Title VII, and a recipient of federal monies subject to Title IX restrictions in Harrold, Texas.
19. The Court is authorized to award the requested declaratory relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201–2202. The Court is authorized to order corrective action under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 611.
III. FACTUAL BACKGROUND A. Congressional History. 20. In 1964, Congress enacted Title VII of the Civil Rights Act, making it illegal for employers to invidiously discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. 21. Eight years later, Congress passed Title IX of the Education Amendments of 1972, proscribing invidious discrimination on the basis of “sex” in federally funded education programs and activities. 20 U.S.C. § 1681(a). Title IX permits institutions to differentiate intimate facilities by sex. 20 U.S.C. § 1686 (“Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different

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sexes.”). Section 1686 was added to address concerns that Title IX would force a

college to allow women in dormitories designated for only men, and vice versa. When

Senator Birch Bayh first introduced the legislation, Senator Dominick asked about

the scope of the law:

Mr. DOMINICK. The provisions on page 1, under section 601, refer to the fact that no one shall be denied the benefits of any program or activity conducted, et cetera. The words “any program or activity,” in what way is the Senator thinking here? Is he thinking in terms of dormitory facilities, is he thinking in terms of athletic facilities or equipment, or in what terms are we dealing here? Or are we dealing with just educational requirements?

I think it is important, for example, because we have institutions of learning which, because of circumstances such as I have pointed out, may feel they do not have dormitory facilities which are adequate, or they may feel, as some institutions are already saying, that you cannot segregate dormitories anyway. But suppose they want to [sexually] segregate the dormitories; can they do it?

Mr. BAYH. The rulemaking powers referred to earlier, I think, give the Secretary discretion to take care of this particular policy problem. I do not read this as requiring integration of dormitories between the sexes, nor do I feel it mandates the [sexual] desegregation of football fields.

What we are trying to do is provide equal access for women and men students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football involved. We are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be [sexually] desegregated.

117 Cong. Rec. 30407 (1971) (emphasis added).

22. The following year, when Title IX was passed, Senator Bayh again

reiterated that this was not meant to force men and women to share intimate facilities

where their privacy rights would be compromised:

Under this amendment, each Federal agency which extends Federal financial assistance is empowered to issue implementing rules and

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regulations effective after approval of the President. These regulations would allow enforcing agencies to permit differential treatment by sex only—very unusual cases where such treatment is absolutely necessary to the success of the program—such as in classes for pregnant girls or emotionally disturbed students, in sports facilities or other instances where personal privacy must be preserved.

118 Cong. Rec. 5807 (1972) (emphasis added).

23. The same concerns were raised when Title IX was debated in the House.

Representative Thompson, concerned about men and women using the same

facilities, offered an amendment:

I have been disturbed however, about the statements that if there is to be no discrimination based on sex then there can be no separate living facilities for the different sexes. I have talked with the gentlewoman from Oregon (Mrs. Green) and discussed with the gentlewoman an amendment which she says she would accept. The amendment simply would state that nothing contained herein shall preclude any educational institution from maintaining separate living facilities because of sex. So, with that understanding I feel that the amendment [exempting undergraduate programs from Title IX] now under consideration should be opposed and I will offer the “living quarters” amendment at the proper time.

117 Cong. Rec. 39260 (1971) (emphasis added). This amendment was eventually

introduced and passed. 117 Cong. Rec. 39263 (1971).

B. Aftermath of Title IX.

24. Following the enactment of Title IX, there was broad support behind the

policy of maintaining separate intimate facilities for female and male students. The

initial rules that the federal government promulgated to implement Title IX

permitted schools receiving federal funds to separate restrooms, locker rooms, and

shower facilities on the basis of sex. 34 C.F.R. § 106.33. Furthermore, legal scholars

defended separate sex intimate facilities as necessary to preserve individual privacy

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rights. In a 1975 Washington Post editorial, then Columbia Law School Professor Ruth Bader Ginsburg wrote that “[s]eparate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” Ginsburg, The Fear of the Equal Rights Amendment, WASH. POST, Apr. 7, 1975, at A21. And in a 1977 report, the United States Commission on Civil Rights concluded the “the personal privacy principle permits maintenance of separate sleeping and bathroom facilities” for women and men. United States Commission on Civil Rights, SEX BIAS IN THE U.S. CODE 216 (1977).
25. Meanwhile, Congress repeatedly construed its prohibitions against invidious “sex” discrimination narrowly. In 1974, Representatives Bella Abzug and Edward Koch proposed to amend the Civil Rights Act to add the category of “sexual orientation.” H.R. 14752, 93rd Cong. (1974). Congress considered other similar bills during the 1970s. See H.R. 166, 94th Cong. (1975); H.R. 2074, 96th Cong. (1979); S. 2081, 96th Cong. (1979). In 1994, lawmakers introduced the Employment NonDiscrimination Act (“ENDA”), which, like Abzug and Koch’s earlier effort, was premised on the understanding that Title VII’s protections against invidious “sex” discrimination related only to one’s biological sex as male or female. H.R. 4636, 103rd Cong. (1994). In 2007, 2009, and 2011, lawmakers proposed a broader version of EDNA to codify the definition of “sex” that Defendants now embrace. H.R. 3685, 110th Cong. (2007); H.R. 2981, 111th Cong. (2009); S. 811, 112th Cong. (2011). In addition, in 2013 and 2015, proposals were made to add to Title IX the category of “gender identity.” H.R. 1652, 113th Cong. (2013); S.439, 114th Cong. (2015).

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Notwithstanding the success or failure of the aforementioned Congressional proposals, they all affirmed Congress’s enduring understanding that “sex,” as a protected class, refers only to one’s biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans by the collective efforts of Defendants.
26. Moreover, Congress did overtly choose to extended protections for “gender identity” in other areas of federal law. In 2010, President Obama signed into law hate crimes legislation, 18 U.S.C. § 249, which applies to, inter alia, “gender identity.” 18 U.S.C. § 249(a)(2). And in 2013, President Obama signed the Violence against Women Reauthorization Act (VAWA), prohibiting recipients of certain federal grants from discriminating on the basis of “sex” and “gender identity.” 42 U.S.C. § 13925(b)(13)(A).
27. According to influential legal treatises, “gender identity” is not within the ambit of Title VII. See, e.g., 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 551—52 (4th ed. 2007); 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 475—76 (3d ed. 1996).
28. Yet the Obama Administration began to rewrite statutes to cover “gender identity” as though they had actually been amended. For example:
 In a 2010 Dear Colleague Letter, the DOE’s Office of Civil Rights (“OCR”) asserted that “Title IX does protect all students, including . . . transgender (LGBT) students, from sex discrimination.” OCR, Dear Colleague Letter: Harassment and Bullying 8 (Oct. 26, 2010) (Exhibit A).

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 In 2014, OCR stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” OCR, Questions and Answers on Title IX and Sexual Violence B-2 (Apr. 29, 2014) (Exhibit B).
 Attorney General Eric Holder issued a memo in 2014 concluding that Title VII’s prohibition of sexual discrimination “encompasses discrimination based on gender identity, including transgender status.” DOJ, Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 2 (Dec. 15, 2014) (Exhibit C).
 And in 2015, OSHA announced that it had published “guidance” for employers regarding restroom access for individuals who identify with the sex opposite their own. Press Release, OSHA, OSHA publishes guide to restroom access for transgender workers (June 1, 2015), available at https://www.osha.gov/newsrelease/trade-20150601.html. OSHA’s so-called guidance concluded that “all employees should be permitted to use the facilities that correspond with their gender identity,” which is “internal” and could be “different from the sex they were assigned at birth.” OSHA, A guide to Restroom Access for Transgender Workers (2015) (Exhibit D)
Finally, in 2016, the Obama Administration’s disregard for federal law as written— and the ability to maintain separate sex intimate facilities—reached its nadir in the

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wake of events in North Carolina. C. North Carolina. 29. On February 22, 2016, the City Council of Charlotte, North Carolina,
amended the city’s Non-Discrimination Ordinance (Exhibit E), requiring that every government and business bathroom and shower be simultaneously open to both sexes. In other words, Charlotte outlawed the right to maintain separate sex intimate facilities throughout the city. The North Carolina General Assembly then passed the Public Facilities Privacy and Security Act (“the Act”) (Exhibit F), preempting the Charlotte ordinance and providing that public employees and public school students use bathrooms and showers correlating with their biological sex, defined as the sex noted on their birth certificate. The Act does not establish a policy for private businesses and permits accommodations based on special circumstances.
30. After signing the Act, North Carolina Governor Patrick L. McCrory issued Executive Order 93 to Protect Privacy and Equality (“EO 93”) (Exhibit G). EO 93 expanded non-discrimination protections to state employees on the basis of “gender identity,” while simultaneously affirming that cabinet agencies should require multiple occupancy intimate facilities, like bathrooms, to be designated for use only by persons based on their biological sex. EO 93 directed agencies to make reasonable accommodations when practicable.
31. Nevertheless, on May 3, 2016, the EEOC released a document titled “Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964” (“Fact Sheet”) (Exhibit H). The Fact Sheet states that

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Title VII’s prohibition of invidious discrimination on the basis of “sex” also now extends to “gender identity.” It further provides that employers that do not allow employees to use the bathroom and other intimate facilities of their choosing are liable for unlawful discrimination on the basis of “sex.”
32. Then, on May 4, 2016, DOJ sent Governor McCrory a letter (Exhibit I), declaring that the Act and EO 93 violate both Title VII and Title IX. DOJ threatened to “apply to [an] appropriate court for an order that will ensure compliance with” its ultra vires rewriting of the law.
33. On May 9, 2016, DOJ sued North Carolina, asserting that both the Act and EO 93 are impermissible under federal law.
D. The DOJ / DOE Dear Colleague Letter. 34. On May 13, 2016, DOJ and DOE issued a joint “Dear Colleague Letter” (“the Letter”) (Exhibit J), officially foisting its new version of federal law on the more than 100,000 elementary and secondary schools that receive federal funding. 35. The Letter contends that Title IX’s prohibition of invidious “sex” discrimination also somehow encompasses discrimination based on “gender identity.” Further, it advises that schools taking a different view of Title IX face legal action and the loss of federal funds. The Letter concerns “Title IX obligations regarding transgender students” and provides insight as to the manner in which DOE and DOJ will evaluate how schools “are complying with their legal obligations” (emphasis added). It refers to an accompanying document collecting examples from school policies and recommends that school officials comb through the document “for

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practical ways to meet Title IX’s requirements” (same). Indeed, the Letter amounts to “significant guidance” (emphasis in original).
36. According to the Letter, schools must treat a student’s “gender identity” as the student’s “sex” for purposes of Title IX compliance, with one notable exception. “Gender identity,” the Letter explains, refers to a person’s “internal sense of gender,” without regard for biological sex. It can be the same as a person’s biological sex, or different. The Letter provides that no medical diagnosis or treatment requirement is a prerequisite to selecting one’s “gender identity,” nor is there any form of temporal requirement. In other words, a student can choose one “gender identity” on one particular day or hour, and then another one the next. And students of any age may establish a “gender identity” different from their biological sex simply by notifying the school administration—the involvement of a parent or guardian is not necessary.
37. In the case of athletics, however, the Letter does not require schools to treat a student’s “gender identity” as the student’s sex for the purpose of Title IX compliance. Instead, the Letter basically leaves intact Title IX regulations allowing schools to restrict athletic teams to members of one biological sex. The only change that the Letter makes to athletic programs is that schools may not “rely on overly broad generalizations or stereotypes” about students. Otherwise, differentiating sports teams on the basis of sex—not “gender identity”—is consistent with the Letter. The Letter’s disparate treatment of bathrooms and showers, on the one hand, and athletics, on the other, demonstrates that DOE/DOJ is not simply demanding that schools abide by Title IX (as reinterpreted to substitute “gender identity” for “sex”).

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Rather, the Letter tries to rewrite Title IX by executive fiat, mandating all bathrooms and showers open to both sexes, while simultaneously permitting different sex athletics subject to limited exceptions. The new policy has no basis in law.
38. Adapting to the new circumstances put forth by DOE and DOJ requires seismic changes in the operations of the nation’s school districts. Schools subject to Title IX must allow students to choose the restrooms, locker rooms, and other intimate facilities that match their chosen “gender identity” on any given day. Singlesex classes, schools, and dormitories must also be open to students based on their chosen “gender identity.”
39. On May 16, 2016, the Attorneys General of Oklahoma, Texas, and West Virginia sent DOJ and DOE a letter (Exhibit K) requesting clarification on the effect of the letter on agencies within these States. DOJ and DOE did not respond.
E. Harrold Independent School District (TX). 40. On May 23, 2016, school board members of the Harrold ISD (“the Board”) convened a regular session. At the session, the Board adopted a policy (“the Policy”) (Exhibit L) consistent with its current practice. The Policy, which applies to students and employees of the Harrold ISD, limits multiple occupancy bathrooms and locker rooms to usage by persons based on their biological sex. The Policy also allows for accommodations. 41. After adopting the Policy, the Board requested representation (Exhibit M) from the Office of the Attorney General (OAG) of Texas, under Texas Education

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Code § 11.151(e), to determine whether the Policy is in conflict with federal law and, if so, whether the Policy is enforceable. The OAG agreed to represent the Board.
42. Harrold ISD is subject to Title VII and receives federal funding subject to Title IX. In 2015–16, Harrold ISD operated on a total annual budget exceeding $1.4 million, with the federal portion amounting to approximately $117,000.
43. The Defendants’ “significant guidance” Letter of May 13, 2016, (Exhibit J) reiterates that Title IX and its implementing regulations apply to “educational programs and activities operated by recipients of Federal financial assistance” and that schools agree to same “as a condition of receiving federal assistance.”
44. Thus, the federal government would be legally entitled to deny federal funds that comprise a substantial portion of Harrold ISD’s budget if Harrold ISD chooses to follow its Policy instead of the new rules, regulations, guidance and interpretations of Defendants.
F. Arizona Plaintiffs. 45. Plaintiffs Arizona Department of Education, by and through Superintendent of Public Instruction Diane Douglas, and Heber-Overgaard Unified School District (collectively, the “Arizona Plaintiffs”) have requested that Arizona Attorney General Mark Brnovich represent them in the present litigation. Arizona Attorney General Mark Brnovich deems it necessary to represent the Arizona Plaintiffs. Arizona Department of Education Guideline and Procedure Doc. No. HR20 (Exhibit N), which applies to all Arizona Plaintiffs, provides that “It is not . . . discriminatory for a school to offer separate housing, toilet, athletic and other

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facilities on the basis of sex, so long as the facilities provided to each sex are comparable.”
G. Federal Education Funding. 46. The threatened loss of all federal funding for state and local education programs would have a major effect on State education budgets. All fifty States receives a share of the $69,867,660,640 in annual funding that the Federal Government directs to state and local education. DOE, Funds for State FormulaAllocated and Selected Student Aid Programs, U.S. Dep’t of Educ. Funding at 120 available at http://www2.ed.gov/about/overview/budget/statetables/index.html (charts listing the amount of federal education funding by program nationally and by state). DOE estimates that the federal government will spend over $36 billion in State and local elementary and secondary education, and over $30 billion in State and local postsecondary education programs in 2016. 47. Not counting funds paid directly to state education agencies, or funds paid for non-elementary and secondary programs, the national amount of direct federal funding to public elementary and secondary schools alone exceeds $55,862,552,000 on average annually—which amounts to 9.3 percent of the average State’s total revenue for public elementary and secondary schools, or $1,128 per pupil. Texas’s public elementary and secondary schools, for example, receive an average of $5,872,123,000 annually, or $1,156 per pupil, which amounts to about 11.7 percent of the State’s revenue for public elementary and secondary schools. 48. Alabama’s public elementary and secondary schools, for example,

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receive an average of $850,523,000 annually, or $1,142 per pupil, which amounts to about 11.8 percent of the State’s revenue for public elementary and secondary schools. West Virginia’s public elementary and secondary schools, for example, receive an average of $380,192,000 annually, or $1,343 per pupil, which amounts to about 10.7 percent of the State’s revenue for public elementary and secondary schools. Wisconsin’s public elementary and secondary schools, for example, receive an average of $850,329,000 annually, or $975 per pupil, which amounts to about 7.9 percent of the State’s revenue for public elementary and secondary schools. The percentages in the other States are comparable. Nat’l Ctr. For Educ. Statistics, U.S. Dep’t of Educ. & Institute of Educ. Sciences, Digest of Education Statistics, Tab. 235.20, available at https://nces.ed.gov/programs/digest/d15/tables/dt15_235.20.asp?current=yes.
IV. CLAIMS FOR RELIEF COUNT ONE
Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Being Imposed Without
Observance of Procedure Required by Law 49. The allegations in paragraphs 1 through 48 are reincorporated herein. 50. The APA requires this Court to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 51. Defendants are “agencies” under the APA, id. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.

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52. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. Id. § 553.
53. Defendants failed to properly engage in notice-and-comment rulemaking in promulgating the new rules, regulations, guidance, and interpretations described herein.
COUNT TWO Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Exceeding
Congressional Authorization 54. The allegations in paragraphs 1 through 53 are reincorporated herein. 55. The new rules, regulations, guidance and interpretations described herein constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 56. The Defendants are “agencies” under the APA, id. § 701(b)(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA. Id. § 701(b)(2). 57. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). 58. The new rules, regulations, guidance and interpretations described herein go so far beyond any reasonable reading of the relevant Congressional text such that the new rules, regulations, guidance and interpretations functionally

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exercise lawmaking power reserved only to Congress. U.S. CONST. art. I, § 1 (“All legislative powers herein granted shall be vested in . . . Congress”) (emphasis added); The Federalist No. 48, at 256 (James Madison) (Carey and McClellan eds. 1990) (noting that “[i]t is not unfrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” but that “the executive power [is] restrained within a narrower compass and . . . more simple in its nature”).
59. The new rules, regulations, guidance and interpretations described herein also violate separation of powers principles by purporting to expand federal court jurisdiction to cover whether persons of both sexes have a right to use previously separate sex intimate facilities, an issue on which Congress has not intended to legislate. Only Congress, not an agency, can expand federal court jurisdiction, U.S. CONST. art. III, § 1-2; Vaden v. Discover Bank, 556 U.S. 49, 59 n.9 (2009); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“[Federal courts] possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.) (internal citations omitted); Kline v. Burke Const. Co., 260 U.S. 226, 234 (1922) (“[A] court created by the general government derives its jurisdiction wholly from the authority of Congress . . . . provided it be not extended beyond the boundaries fixed by the Constitution.”), and the Defendants’ attempt to do so as described herein violates the constitutional separation of powers.

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60. Because the new rules, regulations, guidance and interpretations are not in accordance with the law articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.
COUNT THREE Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Violating the
Tenth Amendment 61. The allegations in paragraphs 1 through 60 are reincorporated herein. 62. The new rules, regulations, guidance and interpretations described herein constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 63. The federal government is one of limited, enumerated powers; all others—including a general police power—are reserved to the States. See United States v. Morrison, 529 U.S. 598, 617–19 (2000). The States’ police power includes the “protection of the safety of persons,” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82 (1946), the “general power of governing,” NFIB, 132 S. Ct. at 2578, and the “authority to enact legislation for the public good,” Bond v. United States, 134 S. Ct. 2077, 2086 (2014). 64. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. 65. The new rules, regulations, guidance and interpretations described herein violate the Tenth Amendment because they effectively commandeer the

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States’ historic and well-established regulation of civil privacy law. New York v. United States, 505 U.S. 144, 162 (1992) (“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”).
66. The new rules, regulations, guidance and interpretations described herein unlawfully attempt to preempt State law regarding rights of privacy because historic powers reserved to the States, such as civil privacy protections, cannot be superseded by federal act, “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009); Gregory v. Ashcroft, 501 U.S. 452, 460–70 (1991). As explained herein, not only is there no evidence that Congress intended to regulate civil privacy circumstances within the States, but legislative history demonstrates that Congress expressed its clear intent to not encroach upon the traditional State role in safeguarding privacy expectations in the workplace, public accommodations, and educational settings.
67. Because the new rules, regulations, guidance and interpretations are not in accordance with the law as articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.

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COUNT FOUR Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance, and Interpretations at Issue Are Unlawful by Violating the
Fourteenth Amendment 68. The allegations in paragraphs 1 through 67 are reincorporated herein. 69. The new rules, regulations, guidance and interpretations described herein constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 70. The Fourteenth Amendment guarantees “equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The new rules, regulations, and interpretations violate the Fourteenth Amendment because they treat similarly situated students and employees different. 71. The new rules, regulations, guidance and interpretations described herein violate the Fourteenth Amendment because they treat similarly situated students and employees differently. The new rules, regulations, guidance and interpretations described herein provide access to all restrooms and showers for individuals who self-identify as the opposite sex. But if the right or ability to use the intimate facilities of one’s choosing extends only to those who self-identify as the opposite sex then the new rules, regulations, guidance and interpretations treat unequally students and employees that require access to intimate areas. 72. Due to the new rules, regulations, guidance and interpretations described herein, Defendants are selectively enforcing new principles differently as to similarly situated students and employees, which violates the principle of equal

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protection contained within the Fourteenth Amendment 73. Because the new rules, regulations, guidance and interpretations are
not in accordance with the law articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.
COUNT FIVE Relief Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Unlawfully
Attempt to Abrogate State Sovereign Immunity. 74. The allegations in paragraphs 1 through 73 are reincorporated herein. 75. The new rules, regulations, guidance and interpretations improperly abrogate the States’ sovereign immunity without supporting Congressional findings. 76. The Supreme Court has acknowledged Congress’s abrogation of the States’ sovereign immunity in the employment context, but only on the basis of Congressional findings and concerns about State workplace discrimination regarding unequal treatment between men and women, and not an employee’s decision on whether they choose to define themselves as a man or woman. See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 728 and n.2 (2003) (observing that the FMLA aims to promote the goal of equal employment opportunity for women and men). 77. In adopting their new rules, regulations, guidance and interpretations, the Defendants point to no Congressional findings about invidious discrimination by the States (or any other employer) based on “gender identity.” Indeed, the Defendants did not even consider whether Congress intended the term “sex” to include an individual’s right to choose their sex, or properly refers to “sex” as an immutable,

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biological fact established at one’s birth. The Defendants cannot expand abrogation of the State’s sovereign immunity by rewriting the definition of “sex” as it was originally adopted by Congress.
COUNT SIX Relief Under 5 U.S.C. § 706 (APA) that new Rules, Regulations, Guidance
and Interpretations at Issue Are Arbitrary and Capricious 78. The allegations in paragraphs 1 through 77 are reincorporated herein. 79. The APA requires this Court to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 80. Defendants’ actions—rewriting federal law to suit their own policy preferences—are arbitrary and capricious and not otherwise in accordance with the law. Defendants’ actions are arbitrary and capricious because they interfere with local schools by unilaterally redefining the statutory term “sex”—long and widely accepted to be a biological category—to include “gender identity.” Title IX and Title VII do not refer to “gender identity.” Nor does 34 C.F.R. § 106.33, which expressly authorizes separate restrooms and locker rooms “on the basis of sex.” The federal laws at issue prohibit disparate treatment “on the basis of sex,” 20 U.S.C. § 1681(a); 34 C.F.R. § 106.33, a term long understood unambiguously to be a biological category based principally on male or female reproductive anatomy, and not one that includes self-proclaimed “gender identity.”

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COUNT SEVEN

Relief Under 5 U.S.C. § 706 (APA) that new Rules, Regulations, Guidance and Interpretations at Issue Are Arbitrary and Capricious

81. The allegations in paragraphs 1 through 80 are reincorporated herein.

82. The APA requires this Court to hold unlawful and set aside any agency

action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A).

83. Under PREA (Prison Rape Elimination Act), 42 U.S.C. § 15601 et seq.,

those that identify as the sex opposite their biological sex have the option to shower

separately. 28 C.F.R. § 115.42(f). Coupling this element in PREA with the new rules,

regulations, guidance and interpretations at issue (where everyone may identify as

the opposite sex, if they choose to do so) means that every inmate has the right to take

a separate shower, which is an untenable position (and, thus, arbitrary and

capricious), especially within a correctional circumstance.

COUNT EIGHT

Relief Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful and Violate Constitutional Standards of Clear Notice

84. The allegations in paragraphs 1 through 83 are reincorporated herein.

85. The APA requires this Court to hold unlawful and set aside any agency

action that is “contrary to constitutional right, power, privilege, or immunity.” 5

U.S.C. § 706(2)(B).

86. When Congress exercises its Spending Clause power, principles of

federalism require that conditions on Congressional funds must enable the recipient

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“clearly understand,” from the language of the law itself, the conditions to which they are agreeing to when accepting the federal funds. Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). Further, the ex-post interpretation in the new rules is not in accord with the interpretation that existed when the States opted into the spending program. Bennett v. New Jersey, 470 U.S. 632, 638 (1985) (providing that a state’s obligation under cooperative federalism program ‘‘generally should be determined by reference to the law in effect when the grants were made’’).
87. The text employed by Congress does not support the term “sex” as anything other than one’s immutable, biological sex as determined at birth. Rather, Congress expressed its intent to cover “gender identity,” as a protected class, in other pieces of legislation. See, e.g., 18 U.S.C. § 249(a)(2)(A); 42 U.S.C. § 13925(b)(13)(A). In those pieces of legislation, Congress includes “gender identity” along with “sex,” thus evidencing its intent for “sex” to retain its original and only meaning—one’s immutable, biological sex as determined at birth.
COUNT NINE Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations
at Issue Are Unlawful and Unconstitutionally Coercive 88. The allegations in paragraphs 1 through 87 are reincorporated herein. 89. By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy. See NFIB v. Sebelius, 132 S. Ct. 2566, 2605 (2012) (“The threatened loss of

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over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce . . . .”).
90. “The legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’” NFIB, 132 S. Ct. at 2602 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). “Congress may use its spending power to create incentives for [entities] to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). “That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” Id.
91. “[T]he financial ‘inducement’ [Defendants have] chosen is much more than ‘relatively mild encouragement’ – it is a gun to the head.” Id. at 2604. When conditions on the receipt of funds “take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the states to accept policy changes.” Id.; cf. South Dakota v. Dole, 483 U.S. 203, 211 (1987).
92. Furthermore, the Spending Clause requires that the entities “voluntarily and knowingly accept[]” the conditions for the receipt of federal funds. NFIB, 132 S. Ct. at 2602 (quoting Halderman, 451 U.S. at 17).
93. Because Defendants’ new rules, regulations, guidance and interpretations change the conditions for the receipt of federal funds after the states

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had already accepted Congress’s original conditions, the Court should declare that the new rules, regulations, guidance and interpretations are unconstitutional because they violate the Spending Clause.
COUNT TEN Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 611 (RFA) that the new Rules, Regulations, Guidance and Interpretations
Were Issued Without a Proper Regulatory Flexibility Analysis 94. The allegations in paragraphs 1 through 93 are reincorporated herein. 95. Before issuing any of the new rules, regulations, guidance and interpretations at issue, Defendants failed to prepare and make available for public comment an initial and final regulatory flexibility analysis as required by the RFA. 5 U.S.C. § 603(a). An agency can avoid performing a flexibility analysis if the agency’s top official certifies that the rule will not have a significant economic impact on a substantial number of small entities. Id. § 605(b). The certification must include a statement providing the factual basis for the agency’s determination that the rule will not significantly impact small entities. Id. 96. None of the Defendants even attempted such a certification. Thus, the Court should declare Defendants’ new rules, regulations, guidance and interpretations unlawful and set them aside.
V. DEMAND FOR JUDGMENT Plaintiffs respectfully request the following relief from the Court:

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97. A declaration that the new rules, regulations, guidance and interpretations are unlawful and must be set aside as actions taken “without observance of procedure required by law” under the APA;
98. A declaration that the new rules, regulations, guidance and interpretations are substantively unlawful under the APA;
99. A declaration that the new rules, regulations, guidance and interpretations are arbitrary and capricious under the APA;
100. A declaration that the new rules, regulations, guidance and interpretations are invalid because they abrogate Plaintiffs’ sovereign immunity;
101. A declaration that the new rules, regulations, guidance and interpretations are invalid because Defendants failed to conduct the proper regulatory flexibility analysis required by the RFA.
102. A vacatur, as a consequence of each or any of the declarations aforesaid, as to the Defendants’ promulgation, implementation, and determination of applicability of the “significant guidance” document, and its terms and conditions, along with all related rules, regulations, guidance and interpretations, as issued and applied to Plaintiffs and similarly situated parties throughout the United States, within the jurisdiction of this Court.
103. Preliminary relief, enjoining the new rules, regulations, guidance and interpretations from having any legal effect;

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104. A final, permanent injunction preventing the Defendants from

implementing, applying, or enforcing the new rules, regulations, and guidance

interpretations; and

105. All other relief to which the Plaintiffs may show themselves to be

entitled, including attorneys’ fees and costs of courts.

Respectfully submitted,

LUTHER STRANGE Attorney General of Alabama

KEN PAXTON Attorney General of Texas

BRAD D. SCHIMEL Attorney General of Wisconsin

JEFFREY C. MATEER First Assistant Attorney General

PATRICK MORRISEY Attorney General of West Virginia

BRANTLEY STARR Deputy First Assistant Attorney General

HERBERT SLATERY, III Attorney General of Tennessee

PRERAK SHAH Senior Counsel to the Attorney General

MARK BRNOVICH Attorney General of Arizona
SCOTT PRUITT Attorney General of Oklahoma
JEFF LANDRY Attorney General of Louisiana
SEAN REYES Attorney General of Utah
SAM OLENS Attorney General of Georgia

ANDREW LEONIE Associate Deputy Attorney General for Special Litigation
AUSTIN R. NIMOCKS Associate Deputy Attorney General for Special Litigation
/s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 Austin.Nimocks@texasattorneygeneral.gov
Special Litigation Division P.O. Box 12548, Mail Code 001 Austin, Texas 78711-2548

ATTORNEYS FOR PLAINTIFFS

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ORDINANCE NUMBER:

AMENDING CHAPTERS 2, 12, and 22

AN ORDINANCE AMENDING CHAPTER 2 OF THE CHARLOTTE CITY CODE ENTITLED “ADMINISTRATION”, CHAPTER 12 ENTITLED “HUMAN RELATIONS”, AND CHAPTER 22 ENTITLED “VEHICLES FOR HIRE”

BE IT ORDAINED by the City Council of the City of Charlotte, North Carolina, that:
Section 1. Article V of Chapter 2 of the Charlotte City Code is amended as follows:
“Sec. 2-151. - Policy statement.
It is the policy of the city not to enter into a contract with any business firm that has discriminated in the solicitation, selection, hiring or treatment of vendors, suppliers, subcontractors or commercial customers on the basis of race, gender, religion, national origin, ethnicity, age, marital status, familial status, sexual orientation, gender identity, gender expression, or disability, or on the basis of any otherwise unlawful use of characteristics regarding such vendor's, supplier's, or commercial customer's employees or owners in connection with a city contract or solicitation; provided that nothing in this commercial nondiscrimination policy shall prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that has occurred or is occurring in the marketplace.
Sec. 2-152. - Purpose and intent.
It is the intent of the city to avoid becoming a passive participant in private sector commercial discrimination by refusing to procure goods and services from business firms that discriminate in the solicitation, selection, hiring, or treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, gender, religion, national origin, ethnicity, age, marital status, familial status, sexual orientation, gender identity, gender expression, or disability in connection with city contracts or solicitations by providing a procedure for receiving, investigating, and resolving complaints of discrimination involving city contracts or solicitations.
Sec. 2-153. - Definitions.
For purposes of this article, the following terms have the meanings indicated unless the context clearly requires a different meaning. …
Discrimination means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or treatment of a vendor, supplier, subcontractor or commercial customer on the basis of race, gender, religion, national origin, ethnicity, age, marital status, familial status, sexual orientation, gender identity, gender expression, or disability, or on the basis of any otherwise unlawful use of characteristics regarding such vendor's, supplier's, or commercial customer's employees or owners in connection with a city contract or solicitation;

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provided that nothing in this definition or article shall prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that has occurred or is occurring in the marketplace. …
Sec. 2-166. - Mandatory nondiscrimination contract clause.
Every contract and subcontract shall contain a nondiscrimination clause that reads substantially as follows:
As a condition of entering into this agreement, the company represents and warrants that it will fully comply with the city's commercial non-discrimination policy, as described in section 2, article V of the City Code, and consents to be bound by the award of any arbitration conducted thereunder. As part of such compliance, the company shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, age, marital status, familial status, sexual orientation, gender identity, gender expression, or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors, suppliers, or commercial customers in connection with a city contract or contract solicitation process, nor shall the company retaliate against any person or entity for reporting instances of such discrimination. The company shall provide equal opportunity for subcontractors, vendors and suppliers to participate in all of its subcontracting and supply opportunities on city contracts, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that has occurred or is occurring in the marketplace. The company understands and agrees that a violation of this clause shall be considered a material breach of this agreement and may result in termination of this agreement, disqualification of the company from participating in city contracts or other sanctions.
Sec. 2-167. - Contractor bid requirements.
All requests for bids or proposals issued for city contracts shall include a certification to be completed by the bidder or proposer in substantially the following form:
The undersigned bidder or proposer hereby certifies and agrees that the following information is correct:
1. In preparing it's the its enclosed bid or proposal, the bidder or proposer has considered all bids and proposals submitted from qualified, potential subcontractors and suppliers, and has not engaged in discrimination as defined in section 2.
2. For purposes of this section, discrimination means discrimination in the solicitation, selection, or treatment of any subcontractor, vendor, supplier or commercial customer on the basis of race, ethnicity, gender, age, religion, national origin, marital status, familial status, sexual orientation, gender identity, gender expression, disability or any otherwise unlawful form of discrimination. Without limiting the foregoing, discrimination also includes retaliating against any person or other entity for reporting any incident of discrimination.

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3. Without limiting any other remedies that the city may have for a false certification, it is understood and agreed that, if this certification is false, such false certification will constitute grounds for the city to reject the bid or proposal submitted with this certification, and terminate any contract awarded based on such bid or proposal It shall also constitute a violation of the city's commercial non-discrimination ordinance and shall subject the bidder or proposer to any remedies allowed thereunder, including possible disqualification from participating in city contracts or bid processes for up to two years.
4. As a condition of contracting with the city, the bidder or proposer agrees to promptly provide to the city all information and documentation that may be requested by the city from time to time regarding the solicitation and selection of suppliers and subcontractors in connection with this solicitation process. Failure to maintain or failure to provide such information shall constitutes grounds for the city to reject the bid or proposal and to any contract awarded on such bid or proposal. It shall also constitute a violation of the city's commercial non-discrimination ordinance, and shall subject the bidder or proposer to any remedies that are allowed thereunder.
5. As part of its bid or proposal, the bidder or proposer shall provide to the city a list of all instances within the past ten years where a complaint was filed or pending against bidder or proposer in a legal or administrative proceeding alleging that bidder or proposer discriminated against its subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of that complaint, including any remedial action taken.
6. As a condition of submitting a bid or proposal to the city the bidder or proposer agrees to comply with the city's commercial non-discrimination policy as described in section 2, article V of the city code, and consents to be bound by the award of any arbitration conducted thereunder.”
Section 2. Article II of Chapter 12 of the Charlotte City Code is amended as follows:
“Sec. 12-27. - Powers.
Within the limitations provided by law, the community relations committee created under this article has the power to:
… (9) Render at least annually a written report to the mayor and to the city council and to the
chairman and the board of county commissioners. The report may contain recommendations of the committee for legislation or other actions to eliminate or reduce discrimination with respect to race, color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender expression, or national origin.
…

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Sec. 12-29. - Powers of conciliation division.
Within the limitations provided by law, the conciliation division of the community relations committee created by this article has the power to:

… (3) Approve or disapprove plans to eliminate or reduce discrimination with respect to race,
color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender expression, or national origin; ...”

Section 3. Article III of Chapter 2 of the Charlotte City Code is amended as follows:

“Sec. 12-58. - Prohibited acts.

(a)

It shall be unlawful to deny any person the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, and accommodations of a place of public

accommodation because of race, color, religion, sex, marital status, familial status, sexual

orientation, gender identity, gender expression, or national origin.

(b)

It shall be unlawful to make, print, circulate, post, mail or otherwise cause to be

published a statement, advertisement, or sign which indicates that the full and equal enjoyment

of the goods, services, facilities, privileges, advantages, and accommodations of a place of

public accommodation will be refused, withheld from, or denied any person because of race,

color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender

expression, or national origin, or that any person's patronage of or presence at a place of public

accommodation is objectionable, unwelcome, unacceptable, or undesirable because of race,

color, religion or national origin; provided, however, this section does not apply to a private

club or other establishment not, in fact, open to the public.

Sec. 12-59. - Prohibited sex discrimination.

(a) It shall be unlawful to deny a person, because of sex, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a restaurant, hotel, or motel.
(b) This section shall not apply to the following:

(1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.

(2) YMCA, YWCA and similar types of dormitory lodging facilities.

(3) A private club or other establishment not, in fact, open to the public.”

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Section 4. Article II of Chapter 22 of the Charlotte City Code is amended as follows: “Sec. 22-31. - Conduct of certificate holders, permit holders, drivers. …
(i) No company operating certificate holder, vehicle operating permit holder, or driver shall refuse or neglect to transport any person on the basis of race, color, religion, sex, marital status, familial status, sexual orientation, gender identity, gender expression, or national origin. In addition, no company operating certificate holder, vehicle operating permit holder, or driver shall refuse or neglect to transport any person on the basis of disability when such service can be provided to a person with a disability with reasonable accommodation.”
Section 5. This ordinance shall be effective April 1, 2015.
Approved as to form
City Attorney

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E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA

PATRICK MORRISEY
ATTORNEY GENERAL OF WEST VIRGINIA

May 17, 2016
Catherine E. Lhamon Assistant Secretary for Civil Rights U.S. Department of Education 400 Maryland Avenue, SW Washington, D.C. 20202
Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Office of the Assistant Attorney General, Main Washington, D.C. 20530-0001
Re: Dear Colleague Letter on Transgender Students
Dear Assistant Secretary Lhamon and Assistant Attorney General Gupta,
On May 13, 2016, you sent a “Dear Colleague Letter on Transgender Students” to recipients of federal funding subject to Title IX’s requirements. We have reviewed the letter. As chief law officers of our respective states, it is imperative that we be able to advise our state agencies with a proper understanding of the effect you intend this letter to have. We thus write to you seeking clarification on several points.
First, you describe the letter as “significant guidance.” We understand this designation to mean that you reasonably anticipate that your letter will:
(i) Lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal
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governments or communities; or (ii) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; or (iii) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (iv) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in Executive Order 12866, as further amended.1
That definition of “significant guidance,” taken together with your statement that the purpose of the letter is to “inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations,” leads us and others to understand that your Departments will consider any entity not adhering to this “significant guidance” as out of compliance with Title IX, and thus subject to loss of federal funding. In order to clarify this understanding, please answer the following questions: In your view, must an entity receiving federal funding follow this “significant guidance” in order to be in compliance with Title IX and/or entitled to continued receipt of federal funding? Do circumstances exist in which you would consider a school still in compliance with Title IX despite non compliance with these guidelines? If so, please describe those circumstances and whether you would take steps to recoup or end federal funding.
Second, in the “Final Bulletin for Agency Good Guidance Practices,” the Office of Management and Budget stated that “given their legally nonbinding nature, significant guidance documents should not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or ‘‘requirement[.]”2 By our count, your letter uses the word “must” 15 times, and the words “required” and “requirement” 10 times. Because of the mandatory language used in your letter, it is our understanding that you intend the letter to bind recipients of federal funding to compliance. In order to clarify this understanding, please answer the following question: Must recipients of federal funding satisfy the requirements described in the letter, including the requirement that recipients of federal funding “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations”?
Third, you state that your letter “does not add requirements to applicable law.” However, we are aware of no provision of Title IX, nor any decision of any court that would be binding in our states,3 that mandates that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” In other words, if your letter imposes on its recipients the obligation to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” then we are at a loss as to how your letter does not in fact “add requirements to applicable law.” In order to clarify any confusion, please answer the following question: What existing statute, regulation, or binding court decision mandates that schools receiving federal funding must “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations”?
1 Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf. 2 Id. 3 The recent decision by two judges on the U.S. Court of Appeals for the Fourth Circuit in G.G. v. Gloucester County School Board did not address the legality of a federal edict as sweeping as the letter. Moreover, that decision is still subject to challenge; indeed, nine States filed a brief last week supporting further review by all fifteen judges on that court.
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Fourth, your letter defines “gender identity” as “an individual’s internal sense of gender” (emphasis added). Your letter also explains that “[t]he Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.” We understand this to mean that in your view, schools are bound by each student’s subjective statement of their “gender identity” with respect to defining that student’s “sex.” And once a student notifies the school that their “internal sense of gender” has changed, the school must immediately change the way it administers its programs with respect to that student. As your letter indicates, this would require the school to immediately require all staff to refer to the student as “he” instead of “she” (or vice versa), and to allow the student to use the bathroom and locker room for the sex opposite of that which they previously “identified,” and even to let the student play sports for a team of the sex opposite of that which they previously “identified” (unless, apparently, there is “sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”). In order to clarify any confusion, please answer the following question: Is it now a requirement of Title IX that schools administer their programs according to each student’s subjective “internal sense of gender,” and that Title IX bars schools from requiring any sort of objective verification of a student’s sex?
Fifth, most schools understandably require that boys use the boy’s restroom/locker room and that girls use the girl’s restroom/locker room. Your letter states that once a student’s “internal sense of gender” changes, that student must be allowed to use the bathroom of their choosing. It would be an odd result if this requirement meant that a transgender student could use either the boy’s or the girl’s restroom/locker room, whereas other students would remain bound to use one or the other. Indeed, it would conflict with your statement that “a school must not treat a transgender student differently from the way it treats other students of the same gender identity,” since nontransgendered students would have less access to fewer restrooms/locker rooms than transgendered students. We assume, therefore, that a school could require the student to use only the bathroom for the gender with which the student at that moment in time identify. In order to clarify any confusion, please answer the following question: May a school require that a student use only the bathroom/locker room for the gender with which that student identifies?
We seek responses to these important clarifying questions by no later than close of business on May 24, 2016.
Sincerely,
E. SCOTT PRUITT ATTORNEY GENERAL OF OKLAHOMA 313 N.E. 21st Street Oklahoma City, Oklahoma 73105 Phone: 405/521-3921 Fax: 405/522-0669
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PATRICK MORRISEY ATTORNEY GENERAL OF WEST VIRGINIA State Capitol Complex Building 1, Room E-26 Charleston, West Virginia 25305 Phone: 304/558-2021 Fax: 304/558-0140
KEN PAXTON ATTORNEY GENERAL OF TEXAS P.O. Box 12548 Austin, Texas 78701 Phone: 512/463-2100 Fax: 512/475-2994
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244901

SAFETY PROGRAM/RISK MANAGEMENT

CK (LOCAL)

COMPREHENSIVE SAFETY PROGRAMS
SAFETY OF STUDENTS, EMPLOYEES, VISITORS WITH RESPECT TO DISTRICT BATHROOM & CHANGING FACILITIES
DEFINITIONS
"BIOLOGICAL SEX"
"MULTIPLE OCCUPANCY BATHROOM OR CHANGING FACILITY"
"SINGLE OCCUPANCY BATHROOM OR CHANGING FACILITY"
SINGLE-SEX MULTIPLE OCCUPANCY BATHROOM AND CHANGING FACILITIES
ACCOMMODATIONS PERMITTED
EXCEPTIONS

The Superintendent or designee shall be responsible for developing, implementing, and promoting comprehensive safety programs designed to address the safety of students, employees, visitors, and all others with whom the District conducts its business.
In accordance with the District's commitment to continually addressing the safety of students, employees, visitors and all others with whom the District conducts its business, the District establishes the following policy with respect to its bathroom and changing facilities.
The following definitions shall apply in this policy:
"Biological sex" shall mean the physical condition of being a male or female as stated on an individual's birth certificate.
"Multiple occupancy bathroom or changing facility" shall mean a facility designed or designated to be used by more than one person at a time where individuals may be in various stages of undress in the presence of other persons. A multiple occupancy bathroom or changing facility may include, but is not limited to, a school restroom, locker room, changing room, or shower room.
"Single occupancy bathroom or changing facility" shall mean a facility designed or designated to be used by only one person at a time where individuals may be in various stages of undress. A single occupancy bathroom or changing facility may include, but is not limited to, a single stall restroom designated as unisex or for use based on biological sex.
Every multiple occupancy bathroom or changing facility shall be designated for and used only by individuals based on their biological sex.
The Superintendent or campus principal may make reasonable accommodations upon a person's request due to special circumstances.
The provisions in this section shall not apply to persons entering a multiple occupancy bathroom or changing facility designated for use by the opposite sex:
1. For custodial purposes;
2. For maintenance or inspection purposes;

DATE ISSUED: UPDATE CK(LOCAL)-A

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EXHIBIT L

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244901

SAFETY PROGRAM/RISK MANAGEMENT

CK (LOCAL)

3. To render medical assistance;
4. To accompany a student needing assistance when the assisting individual is an employee, an authorized volunteer of the Board, the student's parent, or an authorized caregiver;
5. To receive assistance in using the facility; or
6. To accompany a person other than a student needing assis-
tance.
The provisions in this section shall also not apply when the facility has been temporarily designated for use by that person's biological sex.

DATE ISSUED: UPDATE CK(LOCAL)-A

ADOPTED:

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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

STATE OF TEXAS;

§

HARROLD INDEPENDENT

§

SCHOOL DISTRICT (TX);

§

STATE OF ALABAMA;

§

STATE OF WISCONSIN;

§

STATE OF WEST VIRGINIA;

§

STATE OF TENNESSEE;

§

ARIZONA DEPARTMENT

§

OF EDUCATION;

§

HEBER-OVERGAARD

§

UNIFIED SCHOOL DISTRICT (AZ); §

PAUL LePAGE, Governor of the

§

State of Maine;

§

STATE OF OKLAHOMA;

§

STATE OF LOUISIANA;

§

STATE OF UTAH;

§

STATE OF GEORGIA;

§

STATE OF MISSISSIPPI,

§

by and through Governor Phil Bryant; §

COMMONWEALTH OF KENTUCKY, §

by and through

§

Governor Matthew G. Bevin,

§

§

Plaintiffs,

§

§

v.

§

§

UNITED STATES OF AMERICA;

§

UNITED STATES DEPARTMENT

§

OF EDUCATION; JOHN B. KING,

§

JR., in his Official Capacity as United §

States Secretary of Education; UNITED §

STATES DEPARTMENT OF JUSTICE; §

LORETTA E. LYNCH, in her Official §

Capacity as Attorney General of the

§

United States; VANITA GUPTA, in her §

Official Capacity as Principal Deputy §

Assistant Attorney General;

§

UNITED STATES EQUAL

§

EMPLOYMENT OPPORTUNITY

§

CIVIL ACTION NO. 7:16-cv-00054-O

Case 7:16-cv-00054-O Document 6 Filed 06/15/16 Page 2 of 42 PageID 243

COMMISSION; JENNY R. YANG, in §

her Official Capacity as Chair of

§

the United States Equal Employment §

Opportunity Commission; UNITED

§

STATES DEPARTMENT OF LABOR; §

THOMAS E. PEREZ, in his Official

§

Capacity as United States Secretary §

of Labor; DAVID MICHAELS, in his §

Official Capacity as the Assistant

§

Secretary of Labor for the Occupational §

Safety and Health Administration,

§

§

Defendants.

§

PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

The State of Texas, the Harrold Independent School District (Texas), the State

of Alabama, the State of Wisconsin, the State of West Virginia, the State of

Tennessee, the Arizona Department of Education, the Heber-Overgaard Unified

School District (Arizona), Paul LePage, Governor of the State of Maine, the State of

Oklahoma, the State of Louisiana, the State of Utah, the State of Georgia, the State

of Mississippi, by and through Governor Phil Bryant, and the Commonwealth of

Kentucky, by and through Governor Matthew G. Bevin (collectively, “Plaintiffs”) seek

declaratory and other relief against the United States of America, the United States

Department of Education, John B. King, Jr., in his Official Capacity as United States

Secretary of Education, the United States Department of Justice, Loretta E. Lynch,

in her Official Capacity as Attorney General of the United States, Vanita Gupta, in

her Official Capacity as Principal Deputy Assistant Attorney General, the United

States Equal Employment Opportunity Commission, Jenny R. Yang, in her Official

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Capacity as Chair of the United States Equal Employment Opportunity Commission, the United States Department of Labor, Thomas E. Perez, in his Official Capacity as United States Secretary of Labor, and David Michaels, in his Official Capacity as the Assistant Secretary of Labor for the Occupational Safety and Health Administration.
Plaintiffs include a diverse coalition of States, top State officials, and local school districts, spanning from the Gulf Coast to the Great Lakes, and from the Grand Canyon to the Grand Isle, that believe that the solemn duty of the executive branch is to enforce the law of the land, and not rewrite it by administrative fiat.
Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Defendants cannot foist these radical changes on the nation.
I. PARTIES 1. Plaintiff State of Texas is subject to Title VII as the employer of hundreds of thousands through its constituent agencies. The State of Texas also oversees and controls several agencies that receive federal funding subject to Title IX. For example, the School for the Blind and Visually Impaired (“SBVI”) and School for the Deaf (“SD”) are statutorily created, independent state agencies. Tex. Educ. Code § 30.001 et seq. Both are governed by nine-member boards, appointed by the governor and confirmed by the senate, and both have superintendents appointed by

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the boards and “carry out the functions and purposes of [each] school according to any general policy the board[s] prescribe[].” Id. §§ 30.023(e) (SBVI); 30.053(e) (SD). Currently, SBVI has a total budget of $24,522,116, of which $4,789,974 is identified as federal funds, and SD has a total budget of $28,699,653, of which $1,957,075 is identified as federal funds. As another example, the Texas Juvenile Justice Department (“TJJD”) is a state agency, subject to Title VII and Title IX, responsible for overseeing youth correction facilities in the State of Texas. TJJD’s current budget is $314,856,698, which includes $9,594,137 in federal funding.
2. Plaintiff Harrold Independent School District (“Harrold ISD”) is an independent public school district based in Harrold, Wilbarger County, Texas. Additional information about Harrold ISD can be found infra.
3. The Plaintiff States of Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, and Georgia are similarly situated to the State of Texas in that one or more of the following circumstances is present: (1) they are employers covered by Title VII, (2) their agencies and departments are subject to Title IX, (3) their agencies and departments receive other federal grant funding that requires, as a condition of the grant, compliance with the Title IX provisions at issue in this lawsuit, or (4) they are suing on behalf of public educational institutions, departments, or agencies in their State that are subject to Title IX.
4. Plaintiff Arizona Department of Education is the state agency responsible for “[t]he general conduct and supervision of the public school system” in Arizona. ARIZ. CONST. art. XI, § 2; A.R.S. § 15-231.

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5. Plaintiff Heber-Overgaard Unified School District is a public school district with its principal office located in Heber, Navajo County, Arizona.
6. Plaintiff Paul LePage is the Governor of Maine and Chief Executive of the Maine Constitution and the laws enacted by the Maine Legislature. ME. CONST. art. V, Pt. 1, § 1.
7. Governor Phil Bryant brings this suit on behalf of the State of Mississippi pursuant to Miss. Code Ann. § 7-1-33. Mississippi is similarly situated to the State of Texas and the Plaintiff States in that it (1) is a covered employer under Title VII, (2) its agencies and departments are subject to Title IX, (3) its agencies and departments receive other federal grant funding that requires, as a condition of the grant, compliance with the Title IX provisions at issue in this lawsuit, and (4) many public educational institutions, departments, and agencies in Mississippi are subject to Title IX.
8. Governor Matthew G. Bevin brings this suit on behalf of the Commonwealth of Kentucky pursuant to the Kentucky Constitution, which provides that the “supreme executive power” shall be vested in the Governor. KY. CONST. § 69. Kentucky is similarly situated to the State of Texas and the Plaintiff States in that it (1) is a covered employer under Title VII, (2) its agencies and departments are subject to Title IX, (3) its agencies and departments receive other federal grant funding that requires, as a condition of the grant, compliance with the Title IX provisions at issue in this lawsuit, and (4) many public educational institutions, departments, and agencies in Kentucky are subject to Title IX.

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9. Defendant United States Department of Education (“DOE”) is an executive agency of the United States and responsible for the administration and enforcement of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”).
10. Defendant John B. King, Jr., is the United States Secretary of Education. In this capacity, he is responsible for the operation and management of the DOE. He is sued in his official capacity.
11. Defendant United States Department of Justice (“DOJ”) is an executive agency of the United States and responsible for the enforcement of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. DOJ has the authority to bring enforcement actions to enforce Title IX. Exec. Order No. 12250, 28 C.F.R. Part 41 app. A (1980).
12. Defendant Loretta A. Lynch is the Attorney General of the United States and head of DOJ. She is sued in her official capacity.
13. Defendant Vanita Gupta is Principal Deputy Assistant Attorney General at DOJ and acting head of the Civil Rights Division of DOJ. She is assigned the responsibility to bring enforcement actions under Titles VII and IX. 28 C.F.R. § 42.412. She is sued in her official capacity.
14. Defendant Equal Employment Opportunity Commission (“EEOC”) is a federal agency that administers, interprets, and enforces certain laws, including Title VII. EEOC is, among other things, responsible for investigating employment and hiring discrimination complaints.

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15. Defendant Jenny R. Yang is Chair of the EEOC. In this capacity, she is responsible for the administration and implementation of policy within the EEOC, including the investigating of employment and hiring discrimination complaints. She is sued in her official capacity.
16. Defendant United States Department of Labor (“DOL”) is the federal agency responsible for supervising the formulation, issuance, and enforcement of rules, regulations, policies, and forms by the Occupational Safety and Health Administration (“OSHA”).
17. Defendant Thomas E. Perez is the United States Secretary of Labor. He is authorized to issue, amend, and rescind the rules, regulations, policies, and forms of OSHA. He is sued in his official capacity.
18. Defendant David Michaels is the Assistant Secretary of Labor for OSHA. In this capacity, he is responsible for assuring safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. He is sued in his official capacity.
II. JURISDICTION AND VENUE 19. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this suit concerns the ultra vires revision of the term “sex” under multiple provisions of the United States Code. This Court also has jurisdiction to compel an officer of the United States or any federal agency to perform his or her duty pursuant to 28 U.S.C. § 1361.

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20. Venue is proper in the Northern District of Texas pursuant to 28 U.S.C. § 1391 because the United States, several of its agencies, and several of its officers in their official capacity are Defendants; a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District; and Plaintiff Harrold ISD (TX) is both an employer subject to Title VII, and a recipient of federal monies subject to Title IX restrictions in Harrold, Wilbarger County, Texas.
21. The Court is authorized to award the requested declaratory relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201–2202. The Court is authorized to order corrective action under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 611.
III. FACTUAL BACKGROUND A. Congressional History. 22. In 1964, Congress enacted Title VII of the Civil Rights Act, making it illegal for employers to invidiously discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. 23. Eight years later, Congress passed Title IX of the Education Amendments of 1972, proscribing invidious discrimination on the basis of “sex” in federally funded education programs and activities. 20 U.S.C. § 1681(a). Title IX permits institutions to differentiate intimate facilities by sex. 20 U.S.C. § 1686 (“Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different

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sexes.”). Section 1686 was added to address concerns that Title IX would force a school
to allow women in facilities designated for men only, and vice versa. When Senator
Birch Bayh first introduced the legislation, Senator Dominick asked about the scope
of the law:
Mr. DOMINICK. The provisions on page 1, under section 601, refer to the fact that no one shall be denied the benefits of any program or activity conducted, et cetera. The words “any program or activity,” in what way is the Senator thinking here? Is he thinking in terms of dormitory facilities, is he thinking in terms of athletic facilities or equipment, or in what terms are we dealing here? Or are we dealing with just educational requirements?
I think it is important, for example, because we have institutions of learning which, because of circumstances such as I have pointed out, may feel they do not have dormitory facilities which are adequate, or they may feel, as some institutions are already saying, that you cannot [sexually] segregate dormitories anyway. But suppose they want to [sexually] segregate the dormitories; can they do it?
Mr. BAYH. The rulemaking powers referred to earlier, I think, give the Secretary discretion to take care of this particular policy problem. I do not read this as requiring integration of dormitories between the sexes, nor do I feel it mandates the [sexual] desegregation of football fields.
What we are trying to do is provide equal access for women and men students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football involved. We are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be [sexually] desegregated.
117 Cong. Rec. 30407 (1971) (emphasis added).
24. The following year, when Title IX was passed, Senator Bayh again
reiterated that this was not meant to force men and women to share intimate facilities
where their privacy rights would be compromised:
Under this amendment, each Federal agency which extends Federal financial assistance is empowered to issue implementing rules and

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regulations effective after approval of the President. These regulations would allow enforcing agencies to permit differential treatment by sex only—very unusual cases where such treatment is absolutely necessary to the success of the program—such as in classes for pregnant girls or emotionally disturbed students, in sports facilities or other instances where personal privacy must be preserved.
118 Cong. Rec. 5807 (1972) (emphasis added).
25. Privacy was raised when Title IX was debated in the House.
Representative Thompson, concerned about men and women using the same intimate
facilities, offered an amendment:
I have been disturbed however, about the statements that if there is to be no discrimination based on sex then there can be no separate living facilities for the different sexes. I have talked with the gentlewoman from Oregon (Mrs. Green) and discussed with the gentlewoman an amendment which she says she would accept. The amendment simply would state that nothing contained herein shall preclude any educational institution from maintaining separate living facilities because of sex. So, with that understanding I feel that the amendment [exempting undergraduate programs from Title IX] now under consideration should be opposed and I will offer the “living quarters” amendment at the proper time.
117 Cong. Rec. 39260 (1971) (emphasis added). This amendment was eventually
introduced and passed. 117 Cong. Rec. 39263 (1971).
B. Aftermath of Title IX.
26. At the time that Title IX was enacted, there was broad support behind
the policy of maintaining separate intimate facilities for female and male students.
Scholars defended the practice. See, e.g., Barbara A. Brown, Thomas I. Emerson, Gail
Falk & Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for
Equal Rights for Women, 80 YALE L.J. 871, 901 (1971) (discussing the “separation of
the sexes in public rest rooms”). A 1971 article in the Harvard Law Review candidly

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remarked: “[T]here has never been any indication that men have wished to avoid intimate contact with women on a daily basis.” Note, Sex Discrimination and Equal Protection: Do We Need A Constitutional Amendment?, 84 HARV. L. REV. 1499, 1514 (1971). And a 1972 article in the Texas Law Review characterized restrictions on accessing bathrooms and changing areas as a commonsense “response to our society’s concern for privacy and modesty.” Brian E. Berwick & Carol Oppenheimer, Marriage, Pregnancy, and the Right to Go to School, 50 TEX. L. REV. 1196, 1228 n.116 (1972).
27. Following the enactment of Title IX, there continued to be significant backing for the longstanding arrangement of maintaining sex-separated intimate facilities. The initial rules promulgated to implement Title IX permitted separate restrooms, locker rooms, and shower facilities on the basis of sex. 34 C.F.R. § 106.33. And legal scholars continued to defend sex-separated intimate facilities as necessary to preserve individual privacy rights. In a 1975 Washington Post editorial, then Columbia Law School Professor Ruth Bader Ginsburg wrote that “[s]eparate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” Ginsburg, The Fear of the Equal Rights Amendment, WASH. POST, Apr. 7, 1975, at A21 (emphasis added). And in a 1977 report, the United States Commission on Civil Rights concluded the “the personal privacy principle permits maintenance of separate sleeping and bathroom facilities” for women and men. United States Commission on Civil Rights, Sex Bias in the U.S. Code 216 (1977). Courts have recognized this privacy concern as well. In 1996, the United States Supreme Court determined that in admitting female students, a

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previously all-male military institute must “afford members of each sex privacy from the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996).
28. Congress construes its prohibitions against invidious “sex” discrimination narrowly. In 1974, Representatives Bella Abzug and Edward Koch proposed to amend the Civil Rights Act to add the new category of “sexual orientation.” H.R. 14752, 93rd Cong. (1974). Congress considered other similar bills during the 1970s. See H.R. 166, 94th Cong. (1975); H.R. 2074, 96th Cong. (1979); S. 2081, 96th Cong. (1979). In 1994, lawmakers introduced the Employment NonDiscrimination Act (“ENDA”) which, like Rep. Abzug and Koch’s earlier effort, was premised on the understanding that Title VII’s protections against invidious “sex” discrimination related only to one’s biological sex as male or female. H.R. 4636, 103rd Cong. (1994). In 2007, 2009, and 2011, lawmakers proposed a broader version of EDNA to codify protections for “gender identity” in the employment context. H.R. 2015, 110th Cong. (2007); H.R. 2981, 111th Cong. (2009); S. 811, 112th Cong. (2011). In addition, in 2013 and 2015, proposals were made to add to Title IX the new category of “gender identity.” H.R. 1652, 113th Cong. (2013); S.439, 114th Cong. (2015). Notwithstanding the success or failure of the aforementioned Congressional proposals, they all affirmed Congress’s enduring understanding that “sex,” as a protected class, refers only to one’s biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans by the collective efforts of Defendants.
29. And when Congress actually did, in one instance, redefine the term “sex”

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for the purposes of its prohibitions against invidious “sex” discrimination, the new definition did not encompass “gender identity.” Rather, in 1978, Congress broadened the statutory term “sex” to include discrimination “on the basis of pregnancy, childbirth, or related conditions.” Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, § (k), 92 Stat. 2076, 2076 (1978). In amending the law in this way, Congress indicated that invidious “sex” discrimination occurs when females and males are not afforded the same avenues for advancement, i.e., when pregnant women may be legally fired or not hired. Thus, this amendment affirmed Congress’s long-held view that “sex” refers to biological sex, and not to an individual’s self-perception of his or her “gender identity.”
C. Secondary Sources. 30. According to standard legal treatises, “gender identity” is not within the ambit of Title VII. See, e.g., Margaret C. Jasper, Employment Discrimination Law Under Title VII 45 (2d ed. 2008) (stating that Title VII makes it unlawful “to discriminate against any employee or applicant for employment because of his or her sex”); Mack A. Player, Employment Discrimination Law 239 (1988) (providing that the term “sex” for the purposes of Title VII generally refers to the division of organisms into biological sexes); Charles A. Sullivan et al, Federal Statutory Law of Employment Discrimination 161 (1980) (same). Indeed, “gender identity” was a virtually unrecognized construct among legal academics when Title VII and Title IX became law. It was not even mentioned in a law review article on the subject of Title VII or Title IX until the 1980s.

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31. “Gender identity” is a relatively recent addition to the social science lexicon. The 1992 National Health and Social Life Survey did not ask about men or women that identify as the opposite sex, nor did the first four waves of data collection of the National Longitudinal Study of Adolescent Health (begun in 1994 and last fielded in 2008). And the Centers for Disease Control and Prevention (“CDC”) has so far passed on doing so. Brian W. Ward et al, Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013, 77 NATIONAL HEALTH STATISTICS REPORTS 2 (2014).
32. Among the general public, “gender identity” also became a familiar concept only of late. Law Professor Gail Heriot, a member of the United States Commission on Civil Rights, noted in her recent Congressional testimony that the 1991 Compact Oxford English Dictionary does not define “transgender.” The Federal Government on Autopilot: Delegation of Regulatory Authority to an Unaccountable Bureaucracy: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 13 (2016) (statement of Gail Heriot, Member, U.S. Comm’n on Civil Rights). Likewise, newspapers such as the Washington Post and the New York Times did not use the term throughout the 1960s and 1970s. Id.
33. While not a widely used term at the time President Nixon signed Title IX into law, “gender identity” was first used in 1963 at the 23rd International PsychoAnalytical Congress in Stockholm. David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, ARCHIVES OF SEXUAL BEHAVIOR, Apr. 2004, at 93. Notably, early users of “gender” and “gender identity”

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understood these terms to mean something different than “sex.” 34. In the 1950s, John Money, a psychologist at Johns Hopkins University,
introduced “gender”—previously a grammatical term only—into scientific discourse. Joanne Meyerowitz, A History of “Gender,” 113 THE AMERICAN HISTORICAL REVIEW 1346, 1353 (2008). Money believed that an individual’s “gender role” was not determined at birth but was acquired early in a child’s development much in the same fashion that a child learns a language. John Money et al, Imprinting and the Establishment of Gender Role, 77 A.M.A. ARCHIVES OF NEUROLOGY AND PSYCHIATRY 333–36 (1957). Robert Stoller, the UCLA psychoanalyst who first used the term “gender identity,” was another early adopter of the terminology of “gender.” He wrote in 1968 that gender had “psychological or cultural rather than biological connotations.” Robert J. Stoller, Sex and Gender: On the Development of Masculinity and Femininity 9 (1968). To him, “sex was biological but gender was social.” Haig, supra, at 93.
35. In 1969, Virginia Prince, who is credited with coining the term “transgender,” echoed the view that “sex” and “gender” are distinct: “I, at least, know the difference between sex and gender and have simply elected to change the latter and not the former. . . . I should be termed ‘trasngenderal.’” The Federal Government on Autopilot, 114th Cong. 13 (Heriot statement) (quoting Virginia Prince, Change of Sex or Gender, 10 TRANSVESTIA 53, 60 (1969)). And in the 1970s, feminist scholars joined the chorus differentiating “biological sex” from “socially assigned gender.” Haig, supra, at 93 (quoting Ethel Tobach, 41 Some Evolutionary Aspects of Human

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Gender, AMERICAN JOURNAL OF ORTHOPSYCHIATRY 710 (1971)). 36. The meaning of the term “sex” has remained unchanged since the
enactment of Title VII and Title IX. Around the time that these laws passed, nearly every dictionary definition of “sex” referred to physiological distinctions between females and males, particularly with respect to their reproductive functions. See, e.g., AMERICAN HERITAGE DICTIONARY 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2081 (1971) (“the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change . . .”); 9 OXFORD ENGLISH DICTIONARY 578 (1961) (“The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these.”). Even today, “sex” continues to refer to biological differences between females and males. See, e.g., WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1331 (5th ed. 2014) (“either of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions”); Sari L. Reisner et al, “Counting” Transgender and GenderNonconforming Adults in Health Research, TRANSGENDER STUDIES QUARTERLY, Feb. 2015, at 37 (“Sex refers to biological differences among females and males, such as genetics, hormones, secondary sex characteristics, and anatomy.”).

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37. The meaning of “gender” has also remained essentially the same since the term was introduced as a means of drawing a distinction between biological “sex” and social “gender.” See, e.g., Reisner et al, supra, at 37 (“Gender typically refers to cultural meanings ascribed to or associated with patterns of behavior, experience, and personality that are labeled as feminine or masculine.”). This usage of “gender” is also more commonplace now. For example, the 2010 New Oxford American Dictionary distinguishes between “sex,” defined in biological terms, and “gender,” defined in social and cultural terms. NEW OXFORD AMERICAN DICTIONARY 721–22, 1600 (3d ed. 2010).
D. Defendants’ Revisions of the Law. 38. Current federal law reflects the emergence of “gender” and “gender identity” as concepts distinct from “sex.” Congress chose recently to extend protections for “gender identity” in certain areas of federal law. In 2010, President Obama signed into law hate crimes legislation, 18 U.S.C. § 249, which applies to, inter alia, “gender identity.” Id. § 249(a)(2). The 2013 reauthorization of the Violence Against Women Act (VAWA) prohibits recipients of certain federal grants from discriminating on the basis of both “sex” and “gender identity.” 42 U.S.C. § 13925(b)(13)(A). 39. While Congress has added “gender identity” next to “sex” in other areas of federal law, it has not changed the terms of Title VII and Title IX. These laws continue to prohibit unlawful discrimination on the basis of “sex.” Since 2010,

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however, Defendants have pretended that these statutes were actually amended to cover the distinct concept of “gender identity.” For example:
 In a 2010 Dear Colleague Letter, the DOE’s Office for Civil Rights (“OCR”) asserted that “Title IX does protect all students, including . . . transgender (LGBT) students, from sex discrimination.” OCR, Dear Colleague Letter: Harassment and Bullying, at 8 (Oct. 26, 2010) (Exhibit A).
 In April 2014, OCR stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” OCR, Questions and Answers on Title IX and Sexual Violence, at B-2 (Apr. 29, 2014) (Exhibit B).
 Attorney General Eric Holder issued a memo in December 2014 concluding that Title VII’s reference to “sex” “encompasses discrimination based on gender identity, including transgender status.” DOJ, Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, at 2 (Dec. 15, 2014) (Exhibit C).
 And in 2015, OSHA published a “guide” for employers regarding restroom access for employees who identify as the opposite sex. Press Release, OSHA, OSHA publishes guide to restroom access for transgender workers (June 1, 2015). OSHA’s guidance concluded that

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“all employees should be permitted to use the facilities that correspond with their gender identity,” which is “internal” and could be “different from the sex they were assigned at birth.” OSHA, A Guide to Restroom Access for Transgender Workers (2015) (Exhibit D). In 2016, Defendants’ disregard for federal law as written—and the ability to maintain sex-separated intimate facilities—reached its nadir in the wake of events in North Carolina. E. North Carolina. 40. On February 22, 2016, the City Council of Charlotte, North Carolina, amended the city’s Non-Discrimination Ordinance (Exhibit E), requiring that every government and business bathroom and shower, however designated, be simultaneously open to both sexes. In other words, Charlotte outlawed the right to maintain separate sex intimate facilities throughout the city. The North Carolina General Assembly then passed the Public Facilities Privacy and Security Act (“the Act”) (Exhibit F), preempting the Charlotte ordinance and providing that public employees and public school students use bathrooms and showers correlating with their biological sex, defined as the sex noted on their birth certificate. The Act does not establish a policy for private businesses and permits accommodations based on special circumstances. 41. After signing the Act, on April 12, 2016, North Carolina Governor Patrick L. McCrory issued Executive Order No. 93 to Protect Privacy and Equality (“EO 93”) (Exhibit G). EO 93 expanded non-discrimination protections to state

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employees on the basis of “gender identity,” while simultaneously affirming that cabinet agencies should require multiple occupancy intimate facilities, like bathrooms, to be designated for use only by persons based on their biological sex. EO 93 directed cabinet agencies to make reasonable accommodations when practicable.
42. Nevertheless, on May 3, 2016, the EEOC released a document titled “Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964” (“Fact Sheet”) (Exhibit H). The Fact Sheet states that Title VII’s prohibition of invidious discrimination on the basis of “sex” also now extends to “gender identity.” It further provides that employers that do not allow employees to use the bathroom and other intimate facilities of their choosing are liable for unlawful discrimination on the basis of “sex.”
43. Then, on May 4, 2016, DOJ sent Governor McCrory a letter (Exhibit I), declaring that the Act and EO 93 violate both Title VII and Title IX. DOJ threatened to “apply to [an] appropriate court for an order that will ensure compliance with” its ultra vires rewriting of the law.
44. On May 9, 2016, DOJ sued North Carolina, asserting that both the Act and EO 93 are impermissible under federal law.

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F. The DOJ / DOE Joint Letter. 45. On May 13, 2016, DOJ and DOE issued a joint letter (“the Joint Letter”) (Exhibit J), officially foisting its new version of federal law on the more than 100,000 elementary and secondary schools that receive federal funding. 46. The Joint Letter contends that Title IX’s prohibition of invidious “sex” discrimination also somehow encompasses discrimination based on “gender identity.” Further, it advises that schools taking a different view of Title IX face legal action and the loss of federal funds. The Joint Letter concerns “Title IX obligations regarding transgender students” and provides insight as to the manner in which DOJ and DOE will evaluate how schools “are complying with their legal obligations” (emphasis added). It refers to an accompanying document collecting examples from school policies and recommends that school officials comb through the document “for practical ways to meet Title IX’s requirements” (same). Indeed, the Joint Letter amounts to “significant guidance” (emphasis in original). 47. According to the Joint Letter, schools must treat a student’s “gender identity” as the student’s “sex” for purposes of Title IX compliance, with one notable exception. “Gender identity,” the Joint Letter explains, refers to a person’s “internal sense of gender,” without regard to one’s biological sex. One’s “gender identity” can be the same as a person’s biological sex, or different. The Joint Letter provides that no medical diagnosis or treatment requirement is a prerequisite to selecting one’s “gender identity,” nor is there any form of temporal requirement. In other words, a student can choose one “gender identity” on one particular day or hour, and then the

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opposite one the next. And students of any age may establish a “gender identity” different from their biological sex simply by notifying the school administration—the involvement of a parent or guardian is not necessary.
48. In the case of athletics, however, the Joint Letter does not require schools to treat a student’s “gender identity” as the student’s “sex” for the purpose of Title IX compliance. Instead, the Joint Letter basically leaves intact Title IX regulations allowing schools to restrict athletic teams to members of one biological sex. The only change that the Joint Letter makes to athletic programs is that schools may not “rely on overly broad generalizations or stereotypes” about students. Otherwise, differentiating sports teams on the basis of “sex”—not “gender identity”— is consistent with the Joint Letter. The Joint Letter’s disparate treatment of bathrooms and showers, on the one hand, and athletic teams, on the other, demonstrates that DOJ/DOE is not simply demanding that schools abide by Title IX (as misinterpreted to somehow include “gender identity”). Rather, the Joint Letter tries to rewrite Title IX by executive fiat, mandating all bathrooms and showers to be simultaneously open to both sexes, while concurrently permitting different sex athletics subject to limited exceptions. The new policy has no basis in law.
49. Adapting to the new demands of DOJ and DOE requires significant changes in the operations of the nation’s school districts. Schools subject to Title IX must allow students to choose the restrooms, locker rooms, and other intimate facilities that match their chosen “gender identity” at any given time. Single-sex

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classes, schools, and dormitories must also be open to students based on their chosen “gender identity.”
50. On May 17, 2016, the Attorneys General of Oklahoma, Texas, and West Virginia sent DOJ and DOE a letter (Exhibit K) requesting clarification on the effect of the Joint Letter on agencies within these States. DOJ and DOE did not respond.
G. Harrold Independent School District (TX). 51. On May 23, 2016, school board members of the Harrold ISD (“the Board”) convened a regular session. At the session, the Board adopted a policy (“the Policy”) (Exhibit L) consistent with its current practice. The Policy, which applies to students and employees of the Harrold ISD, limits multiple occupancy bathrooms and locker rooms to usage by persons based on their biological sex. The Policy also allows for accommodations. 52. After adopting the Policy, the Board requested representation (Exhibit M) from the Office of the Attorney General (“OAG”) of Texas, under Texas Education Code § 11.151(e), to determine whether the Policy is in conflict with federal law and, if so, whether the Policy is enforceable. The OAG agreed to represent the Board. 53. Harrold ISD is subject to Title VII and receives federal funding subject to Title IX. In 2015–16, Harrold ISD operated on a total annual budget exceeding $1.4 million, with the federal portion amounting to approximately $117,000. 54. Defendants have indicated they will enforce their revision of federal law against entities, such as Harrold ISD, that do not obey the new obligations unlawfully imposed on them. The Joint Letter of May 13, 2016, (Exhibit J) states that Title IX

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and its implementing regulations apply to “educational programs and activities

operated by recipients of Federal financial assistance” and that schools agree to same

“as a condition of receiving federal assistance.” According to its website, DOE

“vigorously enforces Title IX to ensure that institutions that receive federal financial

assistance from [DOE] comply with the law.”

DOE,

http://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html. And federal regulations

provide for mandatory investigations into recipients of Title IX-linked funds who

discriminate on the basis of “sex.” 34 C.F.R. §§ 100.7(a), 100.8, 106.71 (incorporating

Title VI procedures).

55. Thus, the federal government possesses the ability to deny federal funds

that comprise a substantial portion of Harrold ISD’s budget if Harrold ISD chooses

to follow its Policy instead of the new rules, regulations, guidance and interpretations

of Defendants. As a result, Harrold ISD must budget and reallocate resources now in

order to prepare for the prospective loss of federal funding.

H. Arizona Plaintiffs.

56. Plaintiffs Arizona Department of Education, by and through

Superintendent of Public Instruction Diane Douglas, and Heber-Overgaard Unified

School District (collectively, the “Arizona Plaintiffs”) have requested that Arizona

Attorney General Mark Brnovich represent them in the present litigation. Arizona

Attorney General Mark Brnovich deems it necessary to represent the Arizona

Plaintiffs. Arizona Department of Education Guideline and Procedure Doc. No. HR-

20 (Exhibit N), which applies to all Arizona Plaintiffs, provides that “It is not . . .

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discriminatory for a school to offer separate housing, toilet, athletic and other facilities on the basis of sex, so long as the facilities provided to each sex are comparable.” Exhibit N, at 2.
I. Federal Education Funding. 57. The loss of all federal funding for state and local education programs will have a major effect on State and local education budgets. The $69,867,660,640 in annual funding makes its way to all 50 states. DOE, Funds for State FormulaAllocated and Selected Student Aid Programs, U.S. Dep’t of Educ. Funding, at 120, available at http://www2.ed.gov/about/overview/budget/statetables/index.html (charts listing the amount of federal education funding by program nationally and by state). DOE estimates that the federal government will spend over $36 billion in State and local elementary and secondary education, and over $30 billion in State and local postsecondary education programs in 2016. 58. Not counting funds paid directly to state education agencies, or funds paid for non-elementary and secondary programs, the national amount of direct federal funding to public elementary and secondary schools alone exceeds $55,862,552,000 on average annually—which amounts to 9.3 percent of the average State’s total revenue for public elementary and secondary schools, or $1,128 per pupil. Texas’s public elementary and secondary schools, for example, receive an average of $5,872,123,000 in federal funds annually, or $1,156 per pupil, which amounts to about 11.7 percent of the State’s revenue for public elementary and secondary schools.

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59. Alabama’s public elementary and secondary schools, for example, receive an average of $850,523,000 in federal funds annually, or $1,142 per pupil, which amounts to about 11.8 percent of the State’s revenue for public elementary and secondary schools. West Virginia’s public elementary and secondary schools, for example, receive an average of $380,192,000 in federal funds annually, or $1,343 per pupil, which amounts to about 10.7 percent of the State’s revenue for public elementary and secondary schools. Wisconsin’s public elementary and secondary schools, for example, receive an average of $850,329,000 in federal funds annually, or $975 per pupil, which amounts to about 7.9 percent of the State’s revenue for public elementary and secondary schools. The percentages in other States are comparable. Nat’l Ctr. For Educ. Statistics, U.S. Dep’t of Educ. & Institute of Educ. Sciences, Digest of Education Statistics, Tab. 235.20, available at https://nces.ed.gov/programs/digest/d15/tables/dt15_235.20.asp?current=yes.
IV. CLAIMS FOR RELIEF COUNT ONE
Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Being Imposed Without
Observance of Procedure Required by Law 60. The allegations in paragraphs 1 through 59 are reincorporated herein. 61. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by

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statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.
62. The APA requires this Court to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” Id. § 706(2)(D).
63. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. Id. § 553.
64. Defendants failed to properly engage in notice-and-comment rulemaking in promulgating the new rules, regulations, guidance and interpretations described herein.
COUNT TWO Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Exceeding
Congressional Authorization 65. The allegations in paragraphs 1 through 64 are reincorporated herein. 66. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 67. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C).

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68. The new rules, regulations, guidance and interpretations described herein go so far beyond any reasonable reading of the relevant Congressional text such that the new rules, regulations, guidance and interpretations functionally exercise lawmaking power reserved only to Congress. U.S. CONST. art. I, § 1 (“All legislative powers herein granted shall be vested in . . . Congress”) (emphasis added); The Federalist No. 48, at 256 (James Madison) (Carey and McClellan eds. 1990) (noting that “[i]t is not unfrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” but that “the executive power [is] restrained within a narrower compass and . . . more simple in its nature”).
69. The new rules, regulations, guidance and interpretations described herein also violate separation of powers principles by purporting to expand federal court jurisdiction to cover whether persons of both sexes have a right to use previously separate sex intimate facilities, an issue on which Congress has not intended to legislate. Only Congress, not an agency, can expand federal court jurisdiction, U.S. CONST. art. III, § 1-2; Vaden v. Discover Bank, 556 U.S. 49, 59 n.9 (2009); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“[Federal courts] possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.) (internal citations omitted); Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922) (“[A] court created by the general government derives its jurisdiction wholly from the authority of Congress . . . provided it be not extended

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beyond the boundaries fixed by the Constitution.”), and the Defendants’ attempts to do so as described herein violates the constitutional separation of powers.
70. Because the new rules, regulations, guidance and interpretations are not in accordance with the law articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.
COUNT THREE Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Violating the
Tenth Amendment 71. The allegations in paragraphs 1 through 70 are reincorporated herein. 72. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 73. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). 74. The federal government is one of limited, enumerated powers; all others—including a general police power—are reserved to the States. See United States v. Morrison, 529 U.S. 598, 617–19 (2000). The States’ police power includes the “protection of the safety of persons,” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80,

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82 (1946), the “general power of governing,” NFIB v. Sebelius, 132 S. Ct. 2566, 2578 (2012), and the “authority to enact legislation for the public good,” Bond v. United States, 134 S. Ct. 2077, 2086 (2014).
75. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X.
76. The new rules, regulations, guidance and interpretations described herein violate the Tenth Amendment because they effectively commandeer the States’ historic and well-established regulation of civil privacy law. New York v. United States, 505 U.S. 144, 162 (1992) (“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”).
77. The new rules, regulations, guidance and interpretations described herein unlawfully attempt to preempt State law regarding rights of privacy because historic powers reserved to the States, such as civil privacy protections, cannot be superseded by federal act, “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009); Gregory v. Ashcroft, 501 U.S. 452, 460–70 (1991). As explained herein, not only is there no evidence that Congress intended to regulate civil privacy circumstances within the States, but legislative history demonstrates that Congress expressed its clear intent to not encroach upon the traditional State

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role in safeguarding privacy expectations in the workplace, public accommodations, and educational settings.
78. Because the new rules, regulations, guidance and interpretations are not in accordance with the law as articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.
COUNT FOUR Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Violating the
Equal Protection of Law 79. The allegations in paragraphs 1 through 78 are reincorporated herein. 80. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 81. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). 82. The new rules, regulations, guidance and interpretations violate the constitutional right to the equal protection of law because they treat similarly situated individuals differently. For example, under Defendants’ new rules, a female who proclaims a male “gender identity” can use either the men’s or women’s restroom,

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but a female who proclaims a female “gender identity” may use only the women’s restroom. Thus, not all men or women are treated the same.
83. Because the new rules, regulations, guidance and interpretations are not in accordance with the law articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.
COUNT FIVE Relief Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Unlawfully
Attempt to Abrogate State Sovereign Immunity 84. The allegations in paragraphs 1 through 83 are reincorporated herein. 85. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 86. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). 87. The new rules, regulations, guidance and interpretations improperly abrogate the States’ sovereign immunity without supporting Congressional findings. 88. The Supreme Court acknowledges Congress’s abrogation of the States’ sovereign immunity in the employment context, but only on the basis of

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Congressional findings and concerns about unequal treatment between men and women, and not an employee’s decision on whether they declare themselves male or female. See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 728 and n.2 (2003) (observing that the FMLA aims to promote the goal of equal employment opportunity for women and men).
89. In adopting their new rules, regulations, guidance and interpretations, the Defendants point to no Congressional findings about invidious discrimination based on “gender identity.” Indeed, the Defendants ignore the complete lack of any Congressional intent that the term “sex” include an individual’s right to choose his or her sex. The Defendants cannot expand abrogation of the State’s sovereign immunity by rewriting the meaning of “sex” employed by Congress.
COUNT SIX Relief Under 5 U.S.C. § 706 (APA) that new Rules, Regulations, Guidance and Interpretations at Issue Are Arbitrary and Capricious in that they
Interfere with Local Schools 90. The allegations in paragraphs 1 through 89 are reincorporated herein. 91. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.

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92. The APA requires this Court to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
93. Defendants’ actions—rewriting federal law to suit their own policy preferences—are arbitrary and capricious and not otherwise in accordance with the law. Defendants’ actions are arbitrary and capricious because they interfere with local schools by unilaterally changing the statutory term “sex”—long and widely accepted to be a biological category—to include “gender identity.” Title IX and Title VII do not refer to “gender identity.” Nor does 34 C.F.R. § 106.33, which expressly authorizes separate restrooms and locker rooms “on the basis of sex.” The federal laws at issue prohibit disparate treatment “on the basis of sex,” 20 U.S.C. § 1681(a); 34 C.F.R. § 106.33, a term long understood unambiguously to be a biological category based principally on male or female reproductive anatomy, and not one that includes self-proclaimed “gender identity.”
COUNT SEVEN Relief Under 5 U.S.C. § 706 (APA) that new Rules, Regulations, Guidance and Interpretations at Issue Are Arbitrary and Capricious in that they
Conflict with Federal Law 94. The allegations in paragraphs 1 through 93 are reincorporated herein. 95. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by

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statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.
96. The APA requires this Court to hold unlawful and set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
97. Under PREA (Prison Rape Elimination Act), 42 U.S.C. § 15601 et seq., those that identify as the opposite sex have the option to shower separately. 28 C.F.R. § 115.42(f). Coupling this element in PREA with the new rules, regulations, guidance and interpretations at issue (where everyone may identify as the opposite sex, if they choose to do so) means that every inmate can exercise a right to take a separate shower, which is an untenable position (and, thus, arbitrary and capricious), especially within a correctional circumstance.
COUNT EIGHT Relief Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the
new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful and Violate Constitutional Standards of Clear Notice 98. The allegations in paragraphs 1 through 97 are reincorporated herein. 99. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the
new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704.

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100. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C).
101. When Congress exercises its Spending Clause power, conditions on Congressional funds must enable the recipient to “clearly understand,” from the language of the law itself, the conditions to which they are agreeing to when accepting the federal funds. Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). Defendants’ ex-post rules, regulations, guidance and interpretations described herein are not in accord with the understanding that existed when the States opted into the programs. Bennett v. New Jersey, 470 U.S. 632, 638 (1985) (providing that a state’s obligation under cooperative federalism program ‘‘generally should be determined by reference to the law in effect when the grants were made’’).
102. The text employed by Congress does not support understanding the term “sex” in the manner put forth by Defendants. Congress expressed its intent to cover “gender identity,” as a protected class, in other pieces of legislation, see, e.g., 18 U.S.C. § 249(a)(2)(A); 42 U.S.C. § 13925(b)(13)(A), but not Title IX. In other legislation, Congress included “gender identity” along with “sex,” thus evidencing its intent for “sex” in Title IX to retain its original and only meaning—one’s immutable, biological sex as acknowledged at or before birth.

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COUNT NINE Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations
at Issue Are Unlawful and Unconstitutionally Coercive 103. The allegations in paragraphs 1 through 102 are reincorporated herein. 104. Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the new rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. 105. The APA requires this Court to hold unlawful and set aside any agency action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). 106. By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy. See NFIB, 132 S. Ct. at 2605 (“The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce . . . .”). 107. “The legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’’” NFIB, 132 S. Ct. at 2602 (quoting Pennhurst State Sch. & Hosp. v.

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Halderman, 451 U.S. 1, 17 (1981)). “Congress may use its spending power to create incentives for [entities] to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism.” Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). “That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” Id.
108. “[T]he financial ‘inducement’ [Defendants have] chosen is much more than ‘relatively mild encouragement’ – it is a gun to the head.” Id. at 2604. When conditions on the receipt of funds “take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the states to accept policy changes.” Id.; cf. South Dakota v. Dole, 483 U.S. 203, 211 (1987).
109. Furthermore, the Spending Clause requires that entities “voluntarily and knowingly accept[]” the conditions for the receipt of federal funds. NFIB, 132 S. Ct. at 2602 (quoting Halderman, 451 U.S. at 17).
110. Because Defendants’ new rules, regulations, guidance and interpretations change the conditions for the receipt of federal funds after the acceptance of Congress’s original conditions, the Court should declare that the new rules, regulations, guidance and interpretations are unconstitutional because they violate the Spending Clause.

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COUNT TEN Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 611 (RFA) that the new Rules, Regulations, Guidance and Interpretations
Were Issued Without a Proper Regulatory Flexibility Analysis 111. The allegations in paragraphs 1 through 110 are reincorporated herein. 112. Before issuing any of the new rules, regulations, guidance and interpretations at issue, Defendants failed to prepare and make available for public comment an initial and final regulatory flexibility analysis as required by the RFA. 5 U.S.C. § 603(a). An agency can avoid performing a flexibility analysis if the agency’s top official certifies that the rule will not have a significant economic impact on a substantial number of small entities. Id. § 605(b). The certification must include a statement providing the factual basis for the agency’s determination that the rule will not significantly impact small entities. Id. 113. The new rules, regulations, guidance and interpretations impact a substantial number of small entities because they require public schools receiving Title IX-linked funds either to comply or lose a significant portion of their budgets. None of the Defendants even attempted such a certification. Thus, the Court should declare Defendants’ new rules, regulations, guidance and interpretations unlawful and set them aside.
V. DEMAND FOR JUDGMENT Plaintiffs respectfully request the following relief from the Court:

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114. A declaration that the new rules, regulations, guidance and interpretations are unlawful and must be set aside as actions taken “without observance of procedure required by law” under the APA;
115. A declaration that the new rules, regulations, guidance and interpretations are substantively unlawful under the APA;
116. A declaration that the new rules, regulations, guidance and interpretations are arbitrary and capricious under the APA;
117. A declaration that the new rules, regulations, guidance and interpretations are invalid because they abrogate Plaintiffs’ sovereign immunity;
118. A declaration that the new rules, regulations, guidance and interpretations are invalid because Defendants failed to conduct the proper regulatory flexibility analysis required by the RFA.
119. A vacatur, as a consequence of each or any of the declarations aforesaid, as to the Defendants’ promulgation, implementation, and determination of applicability of the Joint Letter, and its terms and conditions, along with all related rules, regulations, guidance and interpretations, as issued and applied to Plaintiffs and similarly situated parties throughout the United States, within the jurisdiction of this Court.
120. Preliminary relief, enjoining the new rules, regulations, guidance and interpretations from having any legal effect;

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121. A final, permanent injunction preventing the Defendants from implementing, applying, or enforcing the new rules, regulations, guidance and interpretations; and
122. All other relief to which the Plaintiffs may show themselves to be entitled, including attorneys’ fees and costs of court.

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LUTHER STRANGE Attorney General of Alabama
BRAD D. SCHIMEL Attorney General of Wisconsin
PATRICK MORRISEY Attorney General of West Virginia
HERBERT SLATERY, III Attorney General of Tennessee
MARK BRNOVICH Attorney General of Arizona
SCOTT PRUITT Attorney General of Oklahoma
JEFF LANDRY Attorney General of Louisiana
SEAN REYES Attorney General of Utah
SAM OLENS Attorney General of Georgia

Respectfully submitted,
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General
PRERAK SHAH Senior Counsel to the Attorney General
ANDREW LEONIE Associate Deputy Attorney General for Special Litigation
AUSTIN R. NIMOCKS Associate Deputy Attorney General for Special Litigation
/s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 Austin.Nimocks@texasattorneygeneral.gov
Special Litigation Division P.O. Box 12548, Mail Code 001 Austin, Texas 78711-2548
ATTORNEYS FOR PLAINTIFFS

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 No. 16-11534
In the United States Court of Appeals for the Fifth Circuit
State of Texas, et al., Plaintiffs-Appellees,
v. United States of America, et al.,
Defendants-Appellants.
On Appeal from the Northern District of Texas, Wichita Falls Division
PLAINTIFFS-APPELLEES’ MOTION FOR EXTENSION OF TIME TO FILE APPELLEES’ BRIEF

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General
Office of the Attorney General 209 W. 14th Street, 7th Floor Austin, Texas 78701 Tel.: (512) 936-1700 Fax: (512) 474-2697

Scott A. Keller Solicitor General scott.keller@oag.texas.gov
Joseph D. Hughes Assistant Solicitor General jody.hughes@oag.texas.gov
Counsel for Plaintiffs-Appellees

In accordance with Federal Rule of Appellate Procedure 27 and Fifth Circuit Rules 27.4 and 31.4, Plaintiffs-Appellees the State of Texas et al. (“Plaintiffs”) hereby move for a 30-day extension of time to file their appellees’ brief.
1. As confirmed by the Clerk’s Office, Plaintiffs’ appellees’ brief is currently due February 6, 2017.1 Plaintiffs seek a 30-day extension of time, until March 8, 2017, to file their appellees’ brief. This is Plaintiffs’ first request for an extension of time in this appeal.
2. Plaintiffs’ counsel conferred with Jeffrey Sandberg, counsel for Defendants, who stated that Defendants are unopposed to a 30-day extension of time. Plaintiffs’ counsel also conferred with Ezra Young, counsel for Dr. Tudor, who stated that Dr. Tudor will oppose the requested extension.2
3. The requested extension is necessary because Plaintiffs’ counsel has numerous other appellate deadlines falling on or close to the existing February 6 briefing deadline:
• Sterling v. United States, U.S. Supreme Court No. 16-814 (certiorari-stage amicus curiae brief due January 27, 2017);
1. Movant-Appellant Dr. Rachel Tudor filed her opening brief on January 3, 2017, and Defendants-
Appellants the United States et al. (“Defendants”) filed their brief on January 6. The Clerk’s Office confirmed that, when two appellants’ briefs are filed, the deadline for a single appellee’s brief addressing both appellants’ briefs is 30 days after the filing date of the later-filed appellant’s brief. Here, because the thirtieth day after January 6 is Sunday, February 5, the deadline is Monday, February 6. See Fed. R. App. P. 26(a)(1)(C). 2. Because Dr. Tudor has not been permitted to intervene in the district court and has not challenged in this Court the district court’s failure to rule on her intervention motion, Plaintiffs do not believe that she is a party for purposes of Fifth Circuit Rule 27.4. Plaintiffs have conferred with her counsel in an abundance of caution to ensure compliance with Rule 27.4.
2

• Young v. Davis, U.S. Supreme Court No. 16-7032 (brief in opposition to certiorari in a capital case due January 30, 2017);
• TC Heartland, LLC v. Kraft Food Group Brands LLC, U.S. Supreme Court No. 16-341 (merits-stage amicus curiae brief due February 6, 2017);
• King Street Patriots v. Texas Democratic Party, Texas Supreme Court No. 15-0320 (oral argument on February 7, 2017); and
• Ayestas v. Davis, U.S. Supreme Court No. 16-6795 (brief in opposition to certiorari in a capital case due February 8, 2017).
In addition to those deadlines, the Court notified the parties yesterday that oral argument on Defendants’ Motion for Partial Stay Pending Appeal will be heard on February 14, 2017. The requested extension will give Plaintiffs’ counsel muchneeded time to meet these deadlines and will not materially delay the resolution of this appeal.
4. The extension of time is sought in the interest of justice, not for delay, and no party will be prejudiced if the requested extension is granted.
5. For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion for a 30-day extension of time to file their Appellees’ brief, up to and including March 8, 2017. In the alternative, Plaintiffs request that the Court grant a shorter extension of time.
3

Ken Paxton Attorney General of Texas
Jeffrey C. Mateer First Assistant Attorney General

Respectfully submitted.
/s/ Scott A. Keller Scott A. Keller Solicitor General
Joseph D. Hughes Assistant Solicitor General
Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697
Counsel for Plaintiffs-Appellees
January 26, 2017

4

Certificate of Conference

On January 25-26, 2017, Plaintiffs’ counsel conferred via email with Jeffrey

Sandberg, counsel for Defendants-Appellants; and with Ezra Young, counsel for

Movant-Appellant Dr. Rachel Tudor. Mr. Sandberg stated that Defendants-

Appellants are unopposed to the requested extension of time. Mr. Young stated that

Dr. Tudor opposes the requested extension.

January 26, 2017

/s/ Scott A. Keller Scott A. Keller

Certificate of Service

I certify that on January 26, 2017, this motion was (1) served via the Court’s

CM/ECF Document Filing System, https://ecf.ca5.uscourts.gov, upon all

registered CM/ECF users; and (2) transmitted to Mr. Lyle W. Cayce, Clerk of the

United States Court of Appeals for the Fifth Circuit, via the Court’s CM/ECF

Document Filing System, https://ecf.ca5.uscourts.gov. I further certify that: (1) any

required privacy redactions have been made in compliance with Fifth Circuit Rule

25.2.13; (2) the electronic submission is an exact copy of the paper document in

compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned

with the most recent version of Symantec Endpoint Protection and is free of viruses.

January 26, 2017

/s/ Scott A. Keller Scott A. Keller

5

Certificate of Compliance This motion complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts exempted by Fed. R. App. P. 32(f), it contains 524 words. This motion complies with the requirements of Fed. R. App. P. 32(a)(5) and Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface (Equity Text A and Equity Caps A) using Microsoft Word 2010.
/s/ Scott A. Keller Scott A. Keller January 26, 2017
6

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS; HARROLD INDEPENDENT SCHOOL DISTRICT (TX); STATE OF ALABAMA; STATE OF WISCONSIN; STATE OF TENNESSEE; ARIZONA DEPARTMENT OF EDUCATION; HEBER-OVERGAARD UNIFIED SCHOOL DISTRICT (AZ); GOVERNOR OF MAINE PAUL LEPAGE; STATE OF OKLAHOMA; STATE OF LOUISIANA; STATE OF UTAH; STATE OF GEORGIA; STATE OF WEST VIRGINIA; STATE OF MISSISSIPPI; STATE OF KENTUCKY,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF EDUCATION; JOHN B. KING, in his Official Capacity as United States Secretary of Education; UNITED STATES DEPARTMENT OF JUSTICE; JEFF SESSIONS, in his Official Capacity as Attorney General of the United States; VANITA GUPTA, in her Official Capacity as Principal Deputy Assistant Attorney General; UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JENNY R. YANG, in her Official Capacity as the Chair of the United States Equal Employment Opportunity Commission; UNITED STATES DEPARTMENT OF LABOR; THOMAS E. PEREZ, in his Official Capacity as United States Secretary of Labor; DAVID MICHAELS, in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and Health Administration,
Defendants-Appellants.

No. 16-11534

UNOPPOSED MOTION FOR VOLUNTARY DISMISSAL Pursuant to Federal Rule of Appellate Procedure 42(b), defendants-appellants United States of America et al. hereby move voluntarily to dismiss this appeal “on

terms agreed to by the parties,” Fed. R. App. P. 42(b), as follows: 1. Defendants-appellants will dismiss the pending Fifth Circuit appeal. Each
party will bear its own fees and costs associated with the appeal. 2. Upon dismissal of the appeal, plaintiffs-appellees State of Texas et al. will
voluntarily dismiss their pending lawsuit in district court pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), which will have the effect of vacating the district court’s August 21, 2016 preliminary injunction (as clarified by October 18, 2016 order). Each party will bear its own fees and costs associated with the district-court litigation.
3. We have consulted with counsel for plaintiffs-appellees, who have indicated that plaintiffs-appellees do not oppose this motion.
2

CONCLUSION For the foregoing reasons, defendants-appellants’ unopposed motion for voluntary dismissal should be granted.
Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General AUGUST E. FLENTJE Special Counsel to the Assistant
Attorney General MARK B. STERN MARLEIGH D. DOVER /s/ Jeffrey E. Sandberg JEFFREY E. SANDBERG THAIS-LYN TRAYER Attorneys, Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Avenue NW, Rm. 7214 Washington, DC 20530
(202) 532-4453 Counsel for Defendants-Appellants United States of America, et al.
March 2, 2017
3

CERTIFICATE OF COMPLIANCE I hereby certify that this motion complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts exempted by Fed. R. App. P. 32(f), it contains 155 words, according to the count of Microsoft Word. I further certify that this joint motion complies with the requirements of Fed. R. App. P. 32(a)(5) because it has been prepared in Garamond, a proportionally spaced typeface.
/s/ Jeffrey E. Sandberg Jeffrey E. Sandberg Attorney, U.S. Department of Justice Civil Division, Appellate Staff Counsel for the United States of America, et al.
CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users, and that service will be accomplished by the appellate CM/ECF system.
/s/ Jeffrey E. Sandberg Jeffrey E. Sandberg Attorney, U.S. Department of Justice Civil Division, Appellate Staff Counsel for the United States of America, et al.

 
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

§

STATE OF TEXAS et al.,

§

§

Plaintiffs,

§

§

v.

§

§

UNITED STATES OF AMERICA

§

et al.,

§

§

Defendants.

§

§

Civil Action No. 7:16-cv-00054-O

PRELIMINARY INJUNCTION ORDER Before the Court are Plaintiffs’ Application for Preliminary Injunction (ECF No. 11), filed July 6, 2016; Defendants’ Opposition to Plaintiffs Application for Preliminary Injunction (ECF No. 40), filed July 27, 2016; and Plaintiffs’ Reply (ECF No. 52), filed August 3, 2016. The Court held a preliminary injunction hearing on August 12, 2016, and counsel for the parties presented their arguments. See ECF No. 56.1 This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school. The sensitivity to this matter is heightened because Defendants’ actions apply to the youngest child attending school and continues for every year throughout each child’s educational career. The resolution of this difficult policy issue is not, however, the subject of this Order. Instead, the

1 The Court also considers various amicus briefs filed by interested parties. See ECF Nos. 16, 28, 34, 361, 38-1.
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Constitution assigns these policy choices to the appropriate elected and appointed officials, who must follow the proper legal procedure.
That being the case, the issues Plaintiffs present require this Court to first decide whether there is authority to hear this matter. If so, then the Court must determine whether Defendants failed to follow the proper legal procedures before issuing the Guidelines in dispute and, if they failed to do so, whether the Guidelines must be suspended until Congress acts or Defendants follow the proper legal procedure. For the following reasons, the Court concludes that jurisdiction is proper here and that Defendants failed to comply with the Administrative Procedures Act by: (1) foregoing the Administrative Procedures Act’s notice and comment requirements; and (2) issuing directives which contradict the existing legislative and regulatory texts. Accordingly, Plaintiffs’ Motion should be and is hereby GRANTED. I. BACKGROUND
The following factual recitation is taken from Plaintiffs’ Application for Preliminary Injunction (ECF No. 11) unless stated otherwise. Plaintiffs are composed of 13 states and agencies represented by various state leaders, as well as Harrold Independent School District of Texas and Heber-Overgaard Unified School District of Arizona.2 They have sued the U.S. Departments of Education (“DOE”), Justice (“DOJ”), Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and various agency officials (collectively “Defendants”), challenging Defendants’ 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
2 Plaintiffs include: (1) the State of Texas; (2) Harrold Independent School District (TX); (3) the State of Alabama; (4) the State of Wisconsin; (5) the State of West Virginia; (6) the State of Tennessee; (7) Arizona Department of Education; (8) Heber-Overgaard Unified School District (Arizona); (9) Paul LePage, Governor of the State of Maine; (10) the State of Oklahoma; (11) the State of Louisiana; (12) the State of Utah; (13) the state of Georgia; (14) the State of Mississippi, by and through Governor Phil Bryant; (15) the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin.
2

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facilities which match their gender identity rather than their biological sex.3 Plaintiffs claim that
on May 13, 2016, Defendants wrote to schools across the country in a Dear Colleague Letter on
Transgender Students (the “DOJ/DOE Letter”) and told them that 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.” Mot. Injunction 1, ECF No. 11. Plaintiffs also allege Defendants have
asserted that employers who “refuse to permit employees to utilize the intimate areas of their
choice face legal liability under Title VII.” Id. Plaintiffs complain that Defendants’
interpretation of the definition of “sex” in the various written directives (collectively “the
Guidelines”)4 as applied to Title IX of the Education Amendments of 1972 (“Title IX”) and Title
VII of the Civil Rights Act of 1964 (“Title VII”) is unlawful and has placed them in legal
jeopardy.
Plaintiffs contend that when Title IX was signed into law, neither Congress nor agency
regulators and third parties “believed that the law opened all bathrooms and other intimate
facilities to members of both sexes.” Mot. Injunction. 1, ECF No. 11. Instead, they argue one of
Title IX’s initial implementing regulations, 34 C.F.R. § 106.33 (“§ 106.33” or “Section 106.33”),
3 Plaintiffs refer to a person’s “biological sex” when discussing the differences between males and females, while Defendants refer to a person’s sex based on the sex assigned to them at birth and reflected on their birth certificate or based on “gender identity” which is “an individual’s internal sense of gender.” See Am. Compl. 12, ECF No. 6; Mot. Injunction 1, ECF No. 11; Am. Compl. Ex. C (Holder Transgender Title VII Memo) (“Holder Memo 2014”) App. 1 n.1, ECF No. 6-3 (“‘[G]ender identity’ [is defined] as an individual’s internal senses of being male or female.”); Id. at Ex. J. (DOJ/DOE Letter) 2, ECF No. 6-10. When referring to a transgendered person, Defendants’ Guidelines state “transgender individuals are people with a gender identity that is different from the sex assigned to them at birth . . . .” Am. Compl., Ex. C (Holder Memo 2014), App. 1 n.1, ECF No. 6-3. “For example, a transgender man may have been assigned female at birth and raised as a girl, but identify as a man.” Id. at Ex. D (OSHA Best Practices Guide to Restroom Access for Transgender Employees) (“OSHA Best Practice Guide”), App. 1, ECF No. 6-4. The Court attempts to use the parties’ descriptions throughout this Order for the sake of clarity. 4 The Guidelines refer to the documents attached to Plaintiffs’ Amended Complaint: (1) Ex. A (DOE Bullying Memo 2010), ECF No. 6-1; (2) Ex. B (DOE Questions and Answers on Title IX and Sexual Violence Memo) (“DOE Q&A Memo), ECF No. 6-2; (3) Ex. C (“Holder Memo 2014”), ECF No. 6-3, (4) Ex. D (OSHA Best Practice Guide), ECF No. 6-4; (5) Ex. H (EEOC Fact Sheet), ECF No. 6-8; and (6) Ex. J (DOJ/DOE Dear Colleague Letter), ECF No. 6-10.
3

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expressly authorized separate restrooms on the basis of sex. Section 106.33 provides: “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33. Plaintiffs assert the term sex in the pertinent statutes and regulations means the biological differences between a male and female. Mot. Injunction 2, ECF No. 11. Plaintiffs state that Defendants’ swift move to supplant the traditional, biological meaning of sex with a definition based on gender identity through the Guidelines, coupled with Defendants’ actions to enforce these new agency policies through investigations and compliance reviews, causes Plaintiffs to suffer irreparable harm for which a preliminary injunction is needed. Id. at 3–8; Pls.’ Reply 3–7, ECF No. 54.
Defendants contend that the Guidelines and recent enforcement actions are designed to prohibit sex discrimination on the basis of gender identity and are “[c]onsistent with the nondiscrimination mandate of [Title IX],” and that “these guidance documents . . . are merely expressions of the agencies’ views as to what the law requires.” Defs.’ Resp. 2–4, ECF No. 40. Defendants also contend that the Guidelines “are not legally binding, and they expose [P]laintiffs to no new liability or legal requirements” because DOE “has issued documents of this nature for decades, across multiple administrations, in order to notify schools and other recipients of federal funds about how the agency interprets the law and how it views new and emerging issues.” Id. at 4–5.5 Defendants also state that the “[g]uidance documents issued by [DOE] ‘do not create or confer any rights for or on any person and do not impose any requirements beyond those required under applicable law and regulations’” and these documents expressly state that they do
5 Defendants cited to U.S. Dep’t of Educ., Office for Civil Rights, Sex Discrimination Policy Guidance, http://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/sex.html (last visited August 5, 2016) (discussing the purpose of guidance documents and providing links to guidance documents).
4

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not carry the force of law. Id. at 5 (citing Holder Memo 2, ECF No. 6-10, to clarify that “the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status,” but the memo “is not intended to otherwise prescribe the course of litigation or defenses that should be raised in any particular employment discrimination case”).
A. TITLE IX Title IX, enacted in 1972, is the landmark legislation which prohibits discrimination among federal fund recipients by providing that no person “shall, on the basis of sex, . . . be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” 20 USC § 1681. The legislative history shows Congress hailed Title IX as an indelible step forward for women’s rights. Mot. Injunction at 2–4. After its passage, the DOE and its predecessor implemented a number of regulations which sought to enforce Title IX, chief among them, and at issue here, § 106.33. See G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 721 (4th Cir. 2016) (stating that the Department of Health, Education, and Welfare (“HEW”) adopted its Title IX regulations in 1975 pursuant to 40 Fed. Reg. 24,128 (June 4, 1975), and DOE implemented its regulations in 1980 pursuant to 45 Fed. Reg. 30802, 30955 (May 9, 1980)). Section 106.33, as well as several other related regulations, permit educational institutions to separate students on the basis of sex, provided the separate accommodations are comparable. II. LEGAL STANDARDS A. The Administrative Procedure Act (the “APA”) “The APA authorizes suit by ‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.’”
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Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702). “Where no
other statute provides a private right of action, the ‘agency action’ complained of must be final agency action.’” Id. at 61–62 (quoting 5 U.S.C. § 704).6 In the Fifth Circuit, “final agency
action” is a jurisdictional threshold, not a merits inquiry. Texas v. Equal Employment
Opportunity Comm’n, No. 14-10949, 2016 WL 3524242 at *5 (5th Cir. June 27, 2016)
(“EEOC”); see also Peoples Nat’l Bank v. Office of the Comptroller of the Currency of the
United States, 362 F.3d 333, 336 (5th Cir. 2004) (“If there is no ‘final agency action,’ a federal
court lacks subject matter jurisdiction.” (citing Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287
(5th Cir. 1999))).
An administrative action is “final agency action” under the APA if: (1) the agency’s
action is the “consummation of the agency’s decision making process;” and (2) “the action [is]
one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences
will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quoting Chicago & Southern Air
Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); and Port of Boston Marine
Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). “In evaluating
whether a challenged agency action meets these two conditions, this court is guided by the
Supreme Court’s interpretation of the APA’s finality requirement as ‘flexible’ and ‘pragmatic.’”
EEOC, 2016 WL 3524242, at *5; Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (quoting
6 Agency action is defined in 5 U.S.C. § 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (quoting 5 U.S.C. § 551(13)). “All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: ‘an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy’ (rule); ‘a final disposition . . . in a matter other than rule making’ (order); a ‘permit . . . or other form of permission’ (license); a ‘prohibition . . . or . . . taking [of] other compulsory or restrictive action’ (sanction); or a ‘grant of money, assistance, license, authority,’ etc., or ‘recognition of a claim, right, immunity,’ etc., or ‘taking of other action on the application or petition of, and beneficial to, a person’ (relief).” Id. (quoting § 551(4), (6), (8), (10), (11)).
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Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967)). When final agency actions are presented for judicial review, the APA provides that reviewing courts should hold unlawful and set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150–151 (1991).
B. Preliminary Injunction The Fifth Circuit set out the requirements for a preliminary injunction in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). To prevail on a preliminary injunction, the movant must show: (1) a substantial likelihood that the movant will ultimately prevail on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that granting the injunction is not adverse to the public interest. Id.; see also Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). To qualify for a preliminary injunction, the movant must clearly carry the burden of persuasion with respect to all four requirements. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003). If the movant fails to establish any one of the four prerequisites to injunctive relief, relief will not be granted. Women’s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). A movant who obtains a preliminary injunction must post a bond to secure the non-movant against any wrongful damages it suffers as a result of the injunction. Fed. R. Civ. P. 65(c). The decision to grant or deny preliminary injunctive relief is left to the sound discretion of the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621
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(5th Cir. 1985) (citing Canal, 489 F.2d at 572). A preliminary injunction “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)). Even when a movant satisfies each of the four Canal factors, the decision whether to grant or deny a preliminary injunction remains discretionary with the district court. Miss. Power & Light Co., 760 F.2d at 621. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Id. III. ANALYSIS
Plaintiffs argue that: (1) Defendants skirted the notice and comment process—a necessity for legislative rules; (2) the new mandates are incompatible with Title VII and Title IX and the agencies are not entitled to deference; (3) the mandates violate the clear notice and anti-coercion requirements which the federal government may attach to spending programs; and (4) nationwide relief is necessary to prevent the irreparable harm Defendants will cause Plaintiffs. Mot. Injunction 2–3, ECF No. 11.
Defendants assert that Plaintiffs are not entitled to a preliminary injunction because: (1) Plaintiffs do not have standing to bring their claims; (2) this matter is not ripe for review; (3) Defendants’ Guidelines do not violate the APA; (4) Plaintiffs cannot demonstrate irreparable harm and they have an alternative remedy; (5) Defendants did not violate the Spending Clause; (6) and an injunction would harm Defendants and third parties. Defs.’ Resp. 1–3, ECF No. 40. Defendants allege that should an injunction be granted, it should be implemented only to
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Plaintiffs in the Fifth Circuit. Id. The Court addresses these issues, beginning with Defendants’ jurisdictional arguments.7
A. Jurisdiction 1. Standing
Defendants allege that “[P]laintiffs’ suit fails the jurisdictional requirements of standing and ripeness . . . because they have not alleged a cognizable concrete or imminent injury.” Defs.’ Resp. 12, ECF No. 40 (citing Lopez v. City of Hous., 617 F.3d 336, 342 (5th Cir. 2015)). Defendants allege “a plaintiff must demonstrate that it has ‘suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Defendants contend that “[t]he agencies have merely set forth their views as to what the law requires” regarding whether gender identity is included in the definition of sex, and “[a]t this stage, [P]laintiffs have alleged no more than an abstract disagreement with the agencies’ interpretation of the law,” since “[n]o concrete situation has emerged that would permit the Court to evaluate [P]laintiffs’ claims in terms of specific facts rather than abstract principles.” Id. at 13–14.
Defendants also allege that Plaintiffs “have [not] identified any enforcement action to which they are or are about to be subject in which a defendant agency is seeking to enforce its
7 The parties have requested that the Court provide expedited consideration of the preliminary injunction. The briefing on this request was completed on August 3, 2016, and the matter was not ripe until after the hearing was completed on August 12, 2016. Because further legal issues concerning the basis for Plaintiffs’ Spending Clause claim were raised at the hearing and require further briefing, the Court will not await that briefing at this time. See Hr’g Tr. 35, 44, 52–53 (discussing new program requirements and whether a new program is the same as annual grants). Therefore, the Spending Clause issue is not addressed in this Order. See ECF Nos. 11–12. Finally, where referenced, Title VII is used to help explain the legislative intent and purpose of Title IX because the two statutes are commonly linked. N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 546 (1982).
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view of the law. As such, any injury alleged by plaintiffs is entirely speculative, as it depended
on the initiation of some kind of enforcement action . . . which may never occur.” Defs.’ Resp.
14, ECF No. 40.
Plaintiffs state that Defendants are affirmatively using the Guidelines to force compliance
as evidenced by various resolution agreements reached in enforcement cases across the country
and from the litigation against the state of North Carolina, all of which is designed to force
Plaintiffs to amend their policies to comply or place their federal funding in jeopardy. Hr’g Tr.
at 78. Plaintiffs argue they are clearly the object of the Defendants’ Guidelines, and those
directives run afoul of various state constitutional and statutory codes which permit Plaintiffs to
exercise control of their education premises and facilities.8 Hr’g Tr. at 77. Plaintiffs contend all
8 Plaintiffs’ motion provides the following citations to their state laws which give them legal control over the management of the safety and security policies of educational buildings in their states and which the Guidelines will compel them to disregard. Texas cites to Tex. Const. art 7 § 1 (“[I]t shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”); Tex. Educ. Code §§ 4.001(b) (stating the objectives of public education, including Objective 8: “School campuses will maintain a safe and disciplined environment conducive to student learning.”); 11.051 (“An independent school district is governed by a board of trustees who, as a corporate body, shall: (1) oversee the management of the district; and (2) ensure the superintendent implements and monitors plans, procedures, programs, and systems to achieve appropriate, clearly defined, and desired results in the major areas of district operations.”); 11.201 (listing the duties of the superintendent including “assuming administrative responsibility and leadership for planning, organization, operation, supervision, and evaluation of the education programs, services, and facilities of the district . . . .”); and 46.008 (“The commissioner shall establish standards for adequacy of school facilities. The standards must include requirements related to space, educational adequacy, and construction quality.”); Pls.’ Reply Ex. (Belew Decl.) 4, ECF No. 52-1 (stating the Texas Education Agency (“TEA”) is responsible for “[t]he regulation and administration of physical buildings and facilities within Texas public schools” among other duties). Plaintiffs also provided an exhaustive list of similar state constitution citations, statutes, codes, and regulations that grant each Plaintiff the power to control the regulations that govern the administration of public education and public education facilities. See Mot. Injunction 9–11 n. 9-22, ECF No. 11 (quoting Ala. Code §§ 16-3-11, 16-3-12, 16-8-8–16-8-12 (“Alabama law authorizes state, county, and city boards of education to control school buildings and property.”); Wis. stat. chs. 115, 118 (“In Wisconsin, local school boards and officials govern public school operations and facilities . . . with the Legislature providing additional supervisory powers to a Department of Public Instruction.”); Wis. Stat. § 120.12(1) (“School boards and local officials are vested with the ‘possession, care, control and management of the property and affairs of the school district, and must regulate the use of school property and facilities.”); Wis. Stat. § 120.13(17) (“Wisconsin law also requires school boards to ‘[p]rovide and maintain enough suitable and separate toilets and other sanitary
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of this confers standing according to the Fifth Circuit’s opinion in Texas v. Equal Employment
Opportunity Commission, No. 14-10940, 2016 WL 3524242 (5th Cir. June 27, 2016). Hr’g Tr.
78.
Defendants counter that EEOC was wrongly decided and, regardless, the facts here are
distinguishable from that case.9 Id. Defendants primarily distinguish EEOC from this case
based on the EEOC majority’s view that the “guidance [at issue] contained a ‘safe harbor’
[provision]” and “the [guidance at issue had] the immediate effect of altering the rights and
obligations of the ‘regulated community’ . . . by offering them [] detailed and conclusive means
facilities for both sexes.’”); W. Va. Const. art. XII, § 2; W. Va. code § 18-5-1, 18-5-9(4) (“West Virginia law establishes state and local boards of education . . . and charges the latter to ensure the good order of the school grounds, buildings, and equipment.”); Tenn. Code Ann. §§ 49-12, 1-302, 49-1-201 (“In Tennessee, the state board of education sets statewide academic policies, . . . and the department of education is responsible for implementing those polices[, while] [e]ach local board of education has the duty to “[m]anage and control all public schools established or that may be established under its jurisdiction.”); Tenn. Code Ann. §§ 49-1-201(a)-(c)(5), 49-2-203(a)(2) (“The State Board is also responsible for “implementation of law” established by the General Assembly, . . . and ensuring that the ‘regulations of the state board of education are faithfully executed.’”); Ariz. Rev. Stat. §§ 15-203(A)(1), 15-341(A)(1), 15-341(A)(3) (“Arizona law establishes state and local boards of education, . . . and empowers local school districts to ‘[m]anage and control the school property within its district.’”); Me. Rev. Stat. tit. 20-A, §§ 201–406, 1001(2), 6501 (“Maine provides for state and local control over public education. While state education authorities supervise the public education system, control over management of all school property, including care of school buildings[,] . . . [a]nd Maine law provides requirements related to school restrooms.”); Okla. Const. art. XIII, §§ 5, 5-117 (“Oklahoma law establishes a state board of education to supervise public schools. Local school boards are authorized by the board to operate and maintain school facilities and buildings.”); La. Const. art VIII, § 3, LSA-R. Stat. § 17:100.6 (“In Louisiana, a state board of education oversees public schools, . . .while local school boards are charged with the management, administration, and control of buildings and facilities within their jurisdiction.”); Utah Code §§ 53A-1-101, 53A-3-402(3) (“Utah law provides for state and local board of educations, . . . and authorizes the local boards to exercise control over school buildings and facilities.”); Ga. Code § 20-2-59, 520 (“Georgia places public schools under the control of a board of education, . . . and delegates control over local schools, including the management of school property, to county school boards govern local schools.”); Miss. Code Ann. § 37-7-301 (“In Mississippi, the state board of education oversees local school boards, which exercise control over local school property.”); Ky. Rev. Stat. §§ 156.070, 160.290 (“In Kentucky, the state board of education governs the state’s public school system, . . . while local boards of education control “all public school property” within their jurisdictions, . . and can make and adopt rules applicable to such property.”). 9 Id. at 14 (“[T]he government respectfully disagrees with that decision for many of the reasons stated in Judge Higginbotham’s dissenting opinion, and . . . EEOC is distinguishable from this case in important respects.”); Hr’g Tr. 53 (“Let me say at the outset . . . the Government disagrees with that decision.”).
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to avoid an adverse EEOC finding.” Defs.’ Resp. 15, ECF No. 40. Defendants claim that the same kind of facts are not present here. Defendants contend further that “the [transgender] guidance documents do not provide ‘an exhaustive procedural framework,’ [or] . . . a safe harbor, but merely express[] the agencies’ opinion about the proper interpretation of Title VII and Title IX.” Id. Thus, they argue, the Court lacks jurisdiction and should decline to enter a preliminary injunction. Id.10
The Court finds that Plaintiffs have standing. “The doctrine of standing asks ‘whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.’” Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Constitutional standing requires a plaintiff to establish that she has suffered an injury in fact traceable to the defendant’s actions that will be redressed by a favorable ruling. Lujan, 504 U.S. at 560–61. The injury in fact must be “concrete and particularized” and “actual or imminent,” as opposed to “conjectural” or “hypothetical.” Id. at 560. When “a plaintiff can establish that it is an ‘object’ of the agency regulation at issue, ‘there is ordinarily little question that the action or inaction has caused [the plaintiff] injury, and that a judgment preventing or requiring the action will redress it.’” EEOC, 2016 WL 3524242 at *2; Lujan, 504 U.S. at 561–62. The Fifth Circuit provided, “[w]hether someone is in fact an object of a regulation is a flexible inquiry rooted in common sense.” Id. at *6 (quoting Contender Farms LLP v. U.S. Dep’t of Agric., 779 F.3d 258, 265 (5th Cir. 2015)).
In EEOC, Texas sued the EEOC over employment guidance the EEOC issued to employers concerning their Title VII obligations. In response, the EEOC argued Texas lacked standing because the guidance was advisory only and imposed no affirmative obligation. The 10 The Court addresses Defendants’ claim that Plaintiffs have an adequate alternate remedy in Section III.A.4.
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Fifth Circuit held that Texas had standing to seek relief because it was an object of the EEOC’s guidance as the guidance applied to Texas as an employer. Id. at *4.
This case is analogous. Defendants’ Guidelines are clearly designed to target Plaintiffs’ conduct. At the hearing, Defendants conceded that using the definition in the Guidelines means Plaintiffs are not in compliance with their Title VII and Title IX obligations. Hr’g Tr. 74. Defendants argue that that this does not confer standing because the Guidelines are advisory only. Defs.’ Resp. 14, ECF No. 40. But this conflates standing with final agency action and the Fifth Circuit instructed district courts to address the two concepts separately. See EEOC, 2016 WL 3524242 at *3. Defendants’ Guidelines direct Plaintiffs to alter their policies concerning students’ access to single sex toilet, locker room, and shower facilities, forcing them to redefine who may enter apart from traditional biological considerations.11 Plaintiffs’ counsel argued the Guidelines will force Plaintiffs to consider ways to build or reconstruct restrooms, and how to accommodate students who may seek to use private single person facilities, as other school districts and employers who have been subjected to Defendants’ enforcement actions have had to do. Hr’g Tr. 80–81. That the Guidelines spur this added regulatory compliance analysis satisfies the injury in fact requirement. EEOC, 2016 WL 3524242 at *4 (“[T]he guidance does, at the very least, force Texas to undergo an analysis, agency by agency, regarding whether the certainty of EEOC investigations . . . overrides the State’s interest . . . . [T]hese injuries are sufficient to confer constitutional standing, especially when considering Texas’s unique position as a sovereign state . . . .”). That Plaintiffs have standing is strengthened by the fact that Texas and
11 For example, Plaintiffs list Wisconsin’s state statutes regarding this matter, which state that school boards are required to “[p]rovide and maintain enough suitable and separate toilets and other sanitary facilities for both sexes.” Mot. Injunction 10 n.9, ECF No. 11 (citing Wis. Stat. s. 120.12(12)). Plaintiffs interpret this to mean that Wisconsin has the authority to maintain separate intimate facilities that correspond to a person’s biological sex. Id.
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other Plaintiffs have a “stake in protecting [their] quasi-sovereign interests . . . [as] special solicitude[s].” Mass. v. E.P.A., 549 U.S. 497, 520 (2007) (“Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. § 7607(b)(1). Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”).
Accordingly, Plaintiffs have standing to pursue this lawsuit. 2. Ripeness
Defendants also argue that this case is not ripe for review. According to Defendants, this Court should avoid premature adjudication to avoid entangling itself in abstract disagreements over administrative policies. Defs.’ Resp. 13, ECF No. 40 (citing Nat’l Park Hosp. Ass’n v. Dep.’t Interior, 538 U.S. 803, 807 (2003)). Defendants argue that more time should be given to allow the administrative process to run its course and develop more facts before the Court can address this case. Id. at 13 (citing Abbott Labs, 387 U.S. 136, 149 (1967)); Hr’g Tr. 62. Plaintiffs counter that, taking into account recent events where Defendants have investigated other entities that do not comply with the Guidelines, this case is ripe. Pls.’ Reply 4–7, ECF No. 52; Hr’g Tr. 79.
“A challenge to administrative regulations is fit for review if (1) the questions presented are ‘purely legal one[s],’ (2) the challenged regulations constitute ‘final agency action,’ and (3) further factual development would not ‘significantly advance [the court’s] ability to deal with the legal issues presented.’” Texas v. United States, 497 F.3d 491, 498–99 (5th Cir. 2007) (citing Nat'l Park Hosp. Ass’n, 538 U.S. at 812).
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The Court finds that Plaintiffs’ case is ripe for review. Here, the parties agree that the questions at issue are purely legal. Hr’g Tr. 61. Defendants asserted at the hearing that Plaintiffs are not in compliance with their obligations under Title IX given their refusal to change their policies. Hr’g Tr. 74. Furthermore, for the reasons set out below, the Court finds that Defendants’ actions amount to final agency action under the APA.12 EEOC, 2016 WL 3524242 at *11 n.9 (“Having determined that the Guidance is ‘final agency action’ under the APA, it follows naturally that Texas’s APA claim is ripe for review. Texas’s challenge to the EEOC Guidance is a purely legal one, and as such it is unnecessary to wait for further factual development before rendering a decision.”) (Internal citations omitted).
Finally, the facts of this case have sufficiently developed to address the legal impact Defendants’ Guidelines have on Plaintiffs’ legal questions in this case. Texas, 497 F.3d at 498– 99. The only other factual development that may occur, given Defendants’ conclusion Plaintiffs are not in legal compliance, is whether Defendants actually seek to take action against Plaintiffs. But it is not clear how waiting for Defendants to actually take action would “significantly advance [the court’s] ability to deal with the legal issues presented.” Texas, 497 F.3d at 498–99. As previously stated, Defendants’ Guidelines clash with Plaintiffs’ state laws and policies in relation to public school facilities and Plaintiffs have called into question the legality of those Guidelines. Mot. Injunction 9–12, ECF No. 11. Therefore, “further factual development would not ‘significantly advance the courts ability to deal with the legal issues presented.’” Texas, 497 F.3d at 498−99. Accordingly, the Court finds that this case is ripe for review.
3. Final Agency Action under the APA
12 The Court further addresses this issue in section III.A.3. 15

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The Court now evaluates whether the Guidelines are final agency action meeting the jurisdictional threshold under the APA. EEOC, 2016 WL 3524242 at *5. Defendants argue that there has been no final agency action as the documents in question are merely “paradigmatic interpretive rules, exempt from the notice-and-comment requirements of the APA.” Defs.’ Resp. 18, ECF No. 40. Defendants also allege that the Guidelines are “[v]alid interpretations of the statutory and regulatory authorities on which they are premised” because although Title IX and § 106.33 provide that federal recipients may provide for separate, comparable facilities, the regulation and statute “do not address how they apply when a transgender student seeks to use those facilities . . . .” Id. at 20−21.
Plaintiffs allege that the agencies’ Guidelines are binding nationwide and the Defendants’ enforcement patterns in various states clearly demonstrate that legal actions against those that do not comply will follow. Mot. Injunction 9–12, ECF No. 11; Reply 2–8, ECF No. 52. Plaintiffs identify a number of similar cases where Defendants have investigated schools that refused to comply with the new Guidelines and where they sued North Carolina over its state law which, in part, made it legal to require a person to use the public restroom according to their biological sex. Reply 6, ECF No. 52.
An administrative action is “final agency action” under the APA if: (1) the agency’s action is the “consummation of the agency’s decision making process;” and (2) “the action [is] one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett, 520 U.S. at 177–78. “In evaluating whether a challenged agency action meets these two conditions, the court is guided by the Supreme Court’s interpretation of the APA’s finality requirement as ‘flexible’ and ‘pragmatic.’” EEOC, 2016 WL 3524242 at *5 (quoting Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011)).
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The Court finds that the Guidelines are final agency action under the APA. Defendants do not dispute that the Guidelines are a “consummation” of the agencies’ decision-making process. Hr’g Tr. 61; Nat’l Pork Producers Council v. E.P.A., 635 F.3d 738, 755–56 (5th Cir. 2011) (citing Her Majesty the Queen in Right of Ontario v. Envtl. Prot. Agency, 912 F.2d 1525, 1532 (D.C. Cir. 1990) (deciding that EPA guidance letters constitute final agency actions as they “serve[d] to confirm a definitive position that has a direct and immediate impact on the parties . . . .”)).
The second consideration is also satisfied in this case because legal consequences flow from the Defendants’ actions. Defendants argue no legal consequences flow to Plaintiffs because there has been no enforcement action, or threat of enforcement action. Hr’g Tr. 71. The Fifth Circuit held in EEOC however that “an agency action can create legal consequences even when the action, in itself, is disassociated with the filing of an enforcement proceeding, and is not authority for the imposition of civil or criminal penalties.” 2016 WL 3524242 at *8. According to the Fifth Circuit, “‘legal consequences’ are created whenever the challenged agency action has the effect of committing the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.” Id. (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1814–15 (May 31, 2016) (holding that using the pragmatic approach, an agency action asserting that plaintiff’s land was subject to the Clean Water Act’s permitting process was a final agency action which carried legal consequences). The Fifth Circuit concluded that “[i]t is also sufficient that the Enforcement Guidance [at issue in EEOC] has the immediate effect of altering the rights and obligations of the ‘regulated community’ (i.e. virtually all state and private employers) by offering them a detailed and conclusive means to avoid an adverse EEOC finding . . . .” 2016 WL 3524242 at * 6.
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In this case, although the Guidelines provide no safe harbor provision, the DOJ/DOE Letter provides not only must Plaintiffs permit individuals to use the restrooms, locker rooms, showers, and housing consistent with their gender identity, but that they find no safe harbor in providing transgender students individual-user facilities as an alternative accommodation. Indeed, the Guidelines provide that schools may, consistent with Title IX, make individual-user facilitates available for other students who “voluntarily seek additional privacy.” See DOJ/DOE Letter 3, ECF No. 6-10. Using a pragmatic and common sense approach, Defendants’ Guidelines and actions indicate that Plaintiffs jeopardize their federal education funding by choosing not to comply with Defendants’ Guidelines.13 EEOC, 2016 WL 3524242 at *8 (“Instead, ‘legal consequences’ are created whenever the challenged agency action has the effect of committing the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.”); Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Hous. & Urban Dev., 980 F.2d 1043, 1056–57 (5th Cir. 1993) (stating that “[w]ere HUD to formally define the phrase [at issue] . . . [the plaintiffs] would undoubtedly have the right to review HUD’s final agency action under § 702 [of the APA]”); Frozen Foods Express v. United States, 351 U.S. 40, 44–45 (1956) (holding an order specifying which commodities the Interstate Commerce Commission believed were exempt was final agency action, even though the order simply gave notice of how it would interpret the statute and would apply only when an action was brought): compare with AT&T Co. v. E.E.O.C, 27 F.3d 973, 975– 76 (D.C. Cir. 2001) (holding that the EEOC’s compliance manual was not a final agency action because the policy guidance did not intend to bind EEOC staff in their official conduct, the
13 The Holder Memorandum concludes, “For these reasons, the [DOJ] will no longer assert that Title VII’s prohibition of discrimination based on sex does not encompass gender identity per se (including transgender discrimination).” Holder Memo 2, ECF No. 6-3. Other guidance from Defendants take similar actions. See also DOJ/DOE Letter 4–5, ECF No. 6-10.
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manual simply expressed the agency’s view with respect to employers’ actions and compliance
with Title VII).
Accordingly, the Court finds that Defendants’ Guidelines are final agency action such
that the jurisdictional threshold is met. EEOC, 2016 WL 3524242 at *5.
4. Alternative Legal Remedy
Defendants also contend that district court review is precluded and Plaintiffs should not
be allowed to avoid the administrative process by utilizing the APA at this time. Defs.’ Resp.
16, ECF No. 40. Defendants allege that “review by a court of appeals is an ‘adequate remedy’
within the meaning of the APA,” and “[s]ection 704 of the APA thus prevents plaintiffs from
circumventing the administrative and judicial process Congress provided them.” Id. Defendants
argue “Congress has precluded district court jurisdiction over pre-enforcement actions like this.”
Id. at 17. Defendants cite several cases, including the Supreme Court’s opinions in Thunder
Basin v. Reich, 510 U.S. 200 (1994) and Elgin v. Department of Treasury, 132 S.Ct. 2126 (2012), in support of this argument.14
Defendants’ assertion that there is no jurisdiction to review Plaintiffs’ APA claims fails
and their reliance on Thunder Basin, Elgin, and the other cited cases is misplaced. In Thunder
Basin, the Supreme Court held that the Mine Act’s statutory review scheme precluded the district
14 Defendants also assert NAACP v. Meese supports this argument but the Court disagrees. In that case, the plaintiffs sought to enjoin the Attorney General from reopening or agreeing to reopen any consent decree in any civil rights action pending in any other court. The district court denied this request, holding such actions would violate principles of separation of powers and comity. 615 F. Supp. 200, 201–02 (D.D.C. 1985) (“Plaintiffs’ action must fail (1) under the principle of the separation of powers, and (2) because this Court lacks authority to interfere with or to seek to guide litigation in other district courts throughout the United States.”). The Meese court also concluded there was no final agency action to enjoin and, by definition, there would be an alternative legal remedy related to those cases where a consent decree existed because those decrees were already subject to a presiding judge. Id. at 203 n.9. Additionally, Defendants reliance on Dist. Adult Prob. Dep’t v. Dole, 948 F.2d 953 (5th Cir. 1991) does not apply because there was no final agency action in that case.
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court from exercising subject-matter jurisdiction over a pre-enforcement challenge. To determine whether pre-enforcement challenges are prohibited courts look to whether this “intent is ‘fairly discernible in the statutory scheme.’” Thunder Basin, 510 U.S. at 207 (quoting Block v. Community Nutrition Institute, 467 U.S. 340, 351 (1984)). The Supreme Court held that “[w]hether a statute is intended to preclude initial judicial review is determined from the statute’s language, structure, and purpose, its legislative history . . . and whether the claims can be afforded meaningful review.” Id. (internal citation omitted).
Although the Mine Act was silent about pre-enforcement claims, the Supreme Court held that “its comprehensive enforcement structure demonstrate[d] that Congress intended to preclude challenges,” and the Mine Act “expressly authorize[d] district court jurisdiction in only two provisions . . . [which allowed] the Secretary [of Labor] to enjoin [] violations of health and safety standards and to coerce payment of civil penalties.” Id. at 209. Thus, plaintiffs had to “complain to the Commission and then to the court of appeals.” Id. (italics omitted).
Elgin reached a similar conclusion, holding that the Civil Service Reform Act (“CSRA”) was the exclusive avenue to judicial review for petitioners’ claims against the Treasury Department. 132 S. Ct. 2126, 2128 (“Just as the CSRA’s ‘elaborate’ framework [citation omitted] demonstrates Congress’ intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review.”).
No similar elaborate statutory framework exists covering Plaintiffs’ claims. Neither Title VII nor Title IX presents statutory schemes that would preclude Plaintiffs from bringing these claims in federal district court. Indeed, the Supreme Court has held that Title IX’s enforcement provisions, codified at Title 20 U.S.C. §§ 1681–1683, does not provide the exclusive statutory
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remedy for violations. See Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) (holding that Title IX did not preclude a private right of action for damages). Given Defendants lack of authority to the contrary, the presumption of reviewability for all agency actions applies. EEOC, 2016 WL 3524242 at *11 (citing Abbott Labs., 387 U.S. at 140) (“To wholly deny judicial review, however, would be to ignore the presumption of reviewability, and to disregard the Supreme Court’s instruction that courts should adopt a pragmatic approach for the purposes of determining reviewability under the APA.”).
Having concluded that Plaintiffs claims are properly subject to judicial review, the Court next evaluates whether a preliminary injunction is appropriate.
B. Preliminary Injunction 1. Likelihood of Success on the Merits
The first consideration is whether Plaintiffs have shown a likelihood of success on the merits for their claims. Plaintiffs aver that they have shown a substantial likelihood that they will prevail on the merits because Defendants have violated the APA by (1) circumventing the notice and comment process and (2) by issuing final agency action that is contrary to law. Mot. Injunction 12–16, ECF No. 11. Furthermore, Plaintiffs contend that Defendants’ new policies are not valid agency interpretations that should be granted deference because “[a]gencies do not receive deference where a new interpretation conflicts with a prior interpretation.” Pls.’ Reply 11, ECF No. 52 (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)).
Defendants contend that their actions do not violate the APA because the Guidelines are interpretive rules and are therefore exempt from the notice and comment requirements. Defs.’ Resp. 12–18, ECF No. 40. Defendants argue the Guidelines are exempt because they do not carry the force of law, even though “the agencies’ interpretations of the law are entitled to some
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deference.” Further, they argue because their interpretation is reasonable, this interpretation is
entitled to deference.15 Defendants also assert they did not act contrary to law because the
Guidelines are valid interpretations of Title IX as the statute and regulations “do not address how
[the laws] apply when a transgender student seeks to use those facilities” or “how a school
should determine a transgender student’s sex when providing access to sex-segregated facilities.”
Id. at 20–21. Thus, according to Defendants, this situation presents an ambiguity in the
regulatory scheme and Defendants are allowed to provide guidelines to federal fund recipients on
this matter. Id. at 21.16
In their Reply, Plaintiffs counter that DOE’s implementing regulation, § 106.33, is not
“ambiguous[,] [a]s a physiologically-grounded regulation, it covers every human being and
therefor all those within the reach of Title IX.” Reply 8, ECF No. 52. They contend further,
“[t]o create legal room to undo what Congress (and preceding regulators) had done, Defendants
15 Defendants argue the Court should be guided in this decision by the Fourth Circuit’s decision in G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) (“G.G.”). Defendants contend the Fourth Circuit’s majority opinion in G.G. should be followed as it provides the proper analysis. The Supreme Court recalled the Fourth Circuit’s mandate and stayed the preliminary injunction entered by the district court in that case. See Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, No. 16-A-52, 2016 WL 4131636 at *1 (Aug. 3, 2016) (Breyer, J. concurring) (“In light of the facts that four Justices have voted to grant the application referred to the Court by THE CHIEF JUSTICE, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court considers the forthcoming petition for certiorari, I vote to grant the application as a courtesy.”). The Supreme Court takes such actions only on the rarest of occasions. Bd. of Ed. of City School Dist. of City of New Rochelle v. Taylor, 82 S.Ct. 10, 10 (1961) (“On such an application, since the Court of Appeals refused the stay ‘* * * this court requires an extraordinary showing, before it will grant a stay of the decree below pending the application for a certiorari.”); Russo v. Byrne, 409 U.S. 1219, 1221 (1972) (“If the application presents frivolous questions it should be denied. If it tenders a ruling out of harmony with our prior decisions, or questions of transcending public importance, or issues which would likely induce this Court to grant certiorari, the stay should be granted.”). Because it is impossible to know the precise issue (s) that prompted the Supreme Court to grant the stay, it is difficult to conclude that G.G. would control the outcome here. See New Motor Vehicle Bd. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (declaring it is very difficult to predict anticipated Supreme Court decision). Nevertheless, the Court has reviewed the opinion and considers the well-expressed views of each member of the panel in reaching the decision in this case. 16 Defendants characterize their Guidelines as, “supply[ing] ‘crisper and more detailed lines’ than the statutes and regulations that they interpret,” without “alter[ing] the legal obligations of regulated entities.” Id. at 20 (citing Am. Mining Cong. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993)).
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manufacture an ambiguity, claiming that ‘these regulations do not address how they apply when a transgender student seeks to use those facilities . . . .’” Id. (citing Defs.’ Response 20–21, ECF No. 40). Plaintiffs continue, “[i]n enacting Title IX, Congress was concerned that women receive the same opportunities as men, [t]hus, Congress utilized ‘sex’ in an exclusively biological context[,] [and] “[t]he two sexes are not fungible.” Id. at 8–9 (quoting Ballard v. United States, 329 U.S. 187, 193 (1946). It is the biological differences between men and women, Plaintiffs allege, that led Congress in 1972 to “permit differential treatment by sex only[,]” provide a basis for DOE “to approve ‘separate toilet, locker rooms, and shower facilities on the basis of sex” in § 106.33, and led the Supreme Court “to conclude that educational institutions must ‘afford members of each sex privacy from the other sex.’” Id. at 9 (quoting 118 Cong. Rec. 5807 (1972)); United States v. Virginia, 518 U.S., 550 n.19 (1996)).
The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).17
i. Notice and Comment under the APA Defendants state that “[t]he APA does not require agencies to follow notice and comment procedures in all situations [, and the APA] specifically excludes interpretive rules and statements of agency policy from these procedures.” Defs.’ Resp. 17–18, ECF No. 40. Defendants allege “[t]he guidance documents are . . . paradigmatic interpretive rules, exempt from the notice-and-comment requirements of the APA.” Id. at 18. According to Defendants,
17 Defendants’ counsel stated at the hearing that Defendants would not be entitled to Chevron deference for the Guidelines. See Hr’g Tr. 72. Thus, the Court addresses only Defendants’ claim that they are entitled to Auer deference when interpreting § 106.33.
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“the interpretations themselves do not carry the force of law . . . .” Id. at 19. Defendants rely on G.G., 822 F.3d 709, 720 (4th Cir. 2016) to support their claim that DOE’s “interpretation of the single-sex facility regulation implementing Title IX is reasonable, and does not conflict with those regulations in any way.” Id.
Plaintiffs contend that Defendants’ rules are legislative because: “(1) they grant rights while also imposing significant obligations; (2) they amend prior legislative rules or longstanding agency practice; and (3) bind the agencies and regulated entities,” requiring them to go through the notice and comment process. Mot. Injunction 12, ECF No. 11.
The APA requires agency rules to be published in the Federal Register and that the public be given an opportunity to comment on them. 5 U.S.C. §§ 553(b) −(c). This is referred to as the notice and comment requirement. The purpose is to permit the agency to understand and perhaps adjust its rules based on the comments of affected individuals. Prof'ls and Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir.1995). However, not every action an agency takes is required to go through the notice and comment process. “The APA divides agency action, as relevant here, into three boxes: legislative rules, interpretive rules, and general statements of policy.” Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014). “Legislative rules generally require notice and comment, but interpretive rules and general statements of policy do not.” Id. (citing 5 U.S.C. § 553). “In order for a regulation to have the ‘force and effect of law,’ it must have certain substantive characteristics and be the product of certain procedural requisites.” Chrysler Corp. v. Brown, 441 U.S. 281, 301–03, (1979).
The APA does not define a legislative or “substantive” rule, but in Morton v. Ruiz, 415 U.S. 199, 234 (1974), the Supreme Court held that a substantive rule or “a legislative-type rule,” is one that “affect[s] individual rights and obligations.” Id. at 232. The Supreme Court also
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held, “the promulgation of these regulations must conform with any procedural requirements imposed by Congress.” Chrysler Corp., 441 U.S. at 303. Thus, agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which “assure fairness and mature consideration of rules of general application.” Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)). If a rule is substantive, notice and comment requirements must be adhered to scrupulously. Prof’ls and Patients for Customized Care, 56 F.3d at 595.
“[L]egislative rules (and sometimes interpretive rules) may be subject to pre-enforcement review” because they subject a party to a binding obligation which can be the subject of an enforcement action. McCarthy, 758 F.3d at 251. (“An agency action that purports to impose legally binding obligations or prohibitions on regulated parties—and that would be the basis for an enforcement action for violations of those obligations or requirements—is a legislative rule . . . .”). The APA treats interpretive rules and general statements of policy differently. Id. (“As to interpretive rules, an agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties, is an interpretive rule.”).18
Courts have focused on several factors to evaluate whether rules are interpretative or legislative. Courts analyze the agency’s characterization of the guidance and post-guidance events to determine whether the agency has applied the guidance as if it were binding on regulated parties. McCarthy, 758 F.3d at 252−53. However, “the most important factor concerns the actual legal effect (or lack thereof) of the agency action in question on regulated
18 Catawba Cty. provides: “An agency action that merely explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy.”)
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entities.” McCarthy, 758 F.3d at 252 (quoting Catawba Cty. v. EPA, 571 F.3d 20, 33–34; Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002)). “A touchstone of a substantive rule is that it establishes a binding norm.” Prof’ls and Patients for Customized Care, 56 F.3d at 596; see also Texas v. United States, 809 F.3d 134, 202 (5th Cir. 2015) (King, J., dissenting) (declaring that an agency action establishing binding norms which permit no discretion is a substantive rule requiring notice and comment). If agency action “draws a ‘line in the sand’ that, once crossed, removes all discretion from the agency” the rule is substantive. Id. at 601.
Here, the Court finds that Defendants rules are legislative and substantive. Although Defendants have characterized the Guidelines as interpretive, post-guidance events and their actual legal effect prove that they are “compulsory in nature.” See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000);19 see also Prof’ls and Patients for Customized Care, 56 F.3d at 596 (the label an agency places on its exercise of administrative power is not conclusive, rather it is what the agency does with that policy that determines the type of action). Defendants confirmed at the hearing that schools not acting in conformity with Defendants’ Guidelines are not in compliance with Title IX. Hr’g Tr. 71. Further, post-Guidelines events, where Defendants have moved to enforce the Guidelines as binding, buttress this conclusion. Id. at 7; Mot. Injunction 15–16, ECF No. 11; Reply 4–8, ECF No. 52. The information before the Court demonstrates Defendants have “drawn a line in the sand” in that they have concluded Plaintiffs must abide by the Guidelines, without exception, or they are in breach of their Title IX obligations. Thus, it would follow that the “actual legal effect” of the Guidelines is to force
19 In Appalachian Power, the D.C. Circuit held that an EPA guidance was a legislative rule despite the guidance document’s statement that it was advisory. The Court analyzed the document as a whole and found that “the entire Guidance, from beginning to end—except the last paragraph—reads like a ukase. It commands, it requires, it orders, it dictates.” 208 F.3d at 1022-23. Similarly, the DOJ/DOE Letter uses the words “must,” and various forms of the word “require” numerous times throughout the document. Am. Compl. Ex. J (DOJ/DOE Letter), ECF No. 6-10.
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Plaintiffs to risk the consequences of noncompliance. McCarthy, 758 F.3d at 252; Catawba Cty., 571 F.3d at 33–34; Gen. Elec. Co., 290 F.3d at 382; see also Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005). Plaintiffs, therefore, are legally affected in a way they were not before Defendants issued the Guidelines. The Guidelines are, in practice, legislative rules—not just interpretations or policy statements because they set clear legal standards. Panhandle Producers and Royalty Owners Ass’n v. Econ. Regulatory Admin, 847 F.2d 1168, 1174 (5th Cir. 1988) (stating that a substantive rule is one that establishes standards of conduct that carry the force of law). As such, Defendants should have complied with the APA’s notice and comment requirement. 5 U.S.C. § 553; Nat’l Min. Ass’n, 758 F.3d at 251; Chrysler Corp., 441 U.S. at 301–03. Permitting the definition of sex to be defined in this way would allow Defendants to “create de facto new regulation” by agency action without complying with the proper procedures. Christensen v. Harris Cty., 529 U.S. 576, 586−88 (2000). This is not permitted.
Accordingly the Court finds that Plaintiffs would likely succeed on the merits that Defendants violated the notice and comment requirements of the APA.
ii. Agency Action Contrary to Contrary to Law (5 U.S.C. § 553)
Plaintiffs contend that Defendants’ Guidelines are contrary to the statutory and regulatory text, Congressional intent, and the plain meaning of the term. Mot. Injunction 14, ECF No. 11. When an agency acts contrary to law, its action must be set aside. 5 U.S.C. § 706(2)(A). Plaintiffs argue that Defendants’ interpretation of the meaning of the term “sex” as set out in the Guidelines contradicts its meaning in Title VII, Title IX, and § 106.33. They assert “the meaning of the terms ‘sex,’ on the one hand, and ‘gender identity,’ on the other, both now and at the time
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Titles VII and IX were enacted, forecloses alternate constructions.” Mot. Injunction 16, ECF No. 11 (citing Thomas Jefferson Univ., 512 U.S. at 512. They also allege that the ordinary meaning of the term controls. Id. at 17 (citing Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)).
Defendants contend that Plaintiffs’ arguments for legislative history and intent at the time of passage are irrelevant. Hr’g Tr. 33 (“But it may very well be that Congress did not intend the law to protect transgender individuals. [But,] . . . as the Supreme Court has made it absolutely clear in Oncale, the fact that Congress may have understood the term sex to mean anatomical sex at birth is largely irrelevant.”) Defendants also allege that “Title IX and Title VII should be construed broadly” to protect any person, including transgendered persons, from discrimination. Hr’g Tr. 33–34.
The starting point to analyze this dispute begins with the actual text of the statute or regulation, where the words should be given their ordinary meaning. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253– 54 (1992)). When the words are unambiguous, the “judicial inquiry is complete.” Id. (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). The pertinent statutory text at issue in this case provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681. Title IX expressly permits educational institutions to maintain separate living facilities for the different sexes. Id. at § 1686. The other language at issue comes from one of the DOE regulations promulgated to implement Title IX, which states: “A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of
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one sex shall be comparable to such facilities provided for students of the other sex.” 34 C.F.R. § 106.33.
Defendants assert the Guidelines simply provide clarity to an ambiguity in this regulation, and that ambiguity is how to define the term sex when dealing with transgendered students. Defs.’ Resp. 20, ECF No. 40. Because they contend the regulation is ambiguous, Defendants argue “[f]oundational principles of administrative law instruct [the Court] to give controlling weight to [their] interpretations of their own ambiguous regulations unless [they are] plainly erroneous.” Id.
Plaintiffs contend the text of both Title VII and Title IX is not ambiguous. Mot. Injunction 16–19, ECF No. 11. They argue when Congress passed both statutes it clearly intended sex to be defined based on the biological and anatomical differences between males and females. See id. at 17–18 (citing legislative history and common understanding of its meaning at the time of passage). Plaintiffs likewise assert § 106.33 is unambiguous, for the same reason, as it was designed to separate students based on their biological differences because they have a privacy right to avoid exhibiting their “nude or partially nude body, genitalia, and other private parts” before members of the opposite sex. Pls.’ Reply 8–9, ECF No. 52. Based on this, they argue Defendants have manufactured an ambiguity so they can then unilaterally change the law to suit their policy preferences. Id. at 8.
iii. Auer Deference Because Defendants assert their regulation is ambiguous, the Court must determine whether their interpretation is entitled to deference. Defendants contend an agency may interpret its own regulation by issuing an opinion letter or other guidance which should be given controlling weight if: (1) the regulation is ambiguous; and (2) the interpretation is not plainly
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erroneous or inconsistent with the regulation. Defs.’ Resp. 21, ECF No. 40; Christensen, 529 U.S. at 588 (“Auer deference is warranted only when the language of the regulation is ambiguous.”); Auer v. Robbins, 519 U.S. 452, 461 (1997) (“[An agency’s] interpretation of [its regulation] is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)).
This deference is only warranted however when the language of the regulation is ambiguous. Moore v. Hannon Food Services, Inc., 317 F.3d 489, 495 (5th Cir. 2003). Legislation is ambiguous if it is susceptible to more than one accepted meaning. Calix v. Lynch, 784 F.3d 1000, 1005 (5th Cir. 2015). “Multiple accepted meanings do not exist merely because a statute’s ‘authors did not have the forethought expressly to contradict any creative contortion that may later be constructed to expand or prune its scope.’” Id. (citing Moore, 317 F.3d at 497 and applying this rule of construction to regulations).
If a regulation is not ambiguous, the agency’s interpretation may be considered but only according to its persuasive power. Moore, 317 F.3d at 495. “Thus, a court must determine whether ‘all but one of the meanings is ordinarily eliminated by context.’” Calix, 784 F.3d at 1005 (quoting Deal v. United States, 508 U.S. 129, 132–33 (1993)). When a term is not defined, courts may generally give the words their common and ordinary meaning in accordance with legislative intent. D.C. Bd. of Elections & Ethics v. D.C., 866 A.2d 788, 798 n.18 (D.C. 2005) (“In finding the ordinary meaning, ‘the use of dictionary definitions is appropriate in interpreting undefined statutory terms.’”); 1618 Twenty–First St. Tenants Ass’n, Inc. v. Phillips Collection, 829 A.2d 201, 203 (D.C. 2003) (same). Furthermore, “an agency is not entitled to deference when it offers up an interpretation of [a regulation] that [courts] have already said to be
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unambiguously foreclosed by the regulatory text.” Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 399 (5th Cir. 2014) (citing Christensen, 529 U.S. at 588).
Based on the foregoing authority, the Court concludes § 106.33 is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth. See 34 C.F.R. § 106.33; 45 Fed. Reg. 30955 (May 9, 1980); Thomas Jefferson Univ., 512 U.S. at 512 (holding that intent determined at the time the regulations are promulgated). It appears Defendants at least tacitly agree this distinction was the intent of the drafter. See Holder Memo 1, ECF No. 6-3 (“The federal government’s approach to this issue has also evolved over time.”); see also Hr’g Tr. 33 (“[I]t may very well be that Congress did not intend the law to protect transgender individuals.”).
Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students. Pls.’ Mot. Injunction 17–18, ECF No. 11 (citing legislative history and common understanding of its meaning at the time of passage). As the support identified by Plaintiffs shows, this was the common understanding of the term when Title IX was enacted, and remained the understanding during the regulatory process that led to the promulgation of § 106.33. See Pls.’ Am. Compl. ¶¶ 8–13, ECF No. 6; see also G.G., 822 F.3d at 736 (Niemeyer, J., dissenting) (providing comprehensive list of various definitions from the 1970s which demonstrated “during that time period, virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions.”). This undoubtedly was permitted because the areas identified by the regulations are places where male and female students may have to expose their “nude or
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partially nude body, genitalia, and other private parts,” and separation from members of the opposite sex, those whose bodies possessed a different anatomical structure, was needed to ensure personal privacy. See G.G., 822 F.3d at 723.
This conclusion is also supported by the text and structure of the regulations. Section 106.33 specifically permits educational institutions to provide separate toilets, locker rooms, and showers based on sex, provided that the separate facilities are comparable. The sections immediately preceding and following § 106.33 likewise permit educational institutions to separate students on the basis of sex. For instance, § 106.32 permits educational institutions to provide separate housing for students on the basis of sex, again so long as the separate housing is comparable, and § 106.33 permits separate educational sessions for boys and girls when dealing with instruction concerning human sexuality. 34 C.F.R. §§ 106.32, 106.34. Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex. G.G., 822 F.3d at 723. Accordingly, this interpretation of § 106.33 is consistent with the structure and purpose of the regulations.
Based on the foregoing, the Court concludes § 106.33 is not ambiguous. Given this regulation is not ambiguous, Defendants’ definition is not entitled to Auer deference, meaning it does not receive controlling weight. Auer, 519 U.S. at 461. Instead, Defendants’ interpretation is entitled to respect, but only to the extent it has the power to persuade. Christensen, 529 U.S. at 587. In his dissent in G.G., Judge Niemeyer characterized Defendants’ definition as “illogical and unworkable.” G.G., 822 F.3d at 737. He outlined a number of scenarios, which need not be repeated here, where the Defendants’ interpretation only causes more confusion for educational
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institutions. Id. A definition that confuses instead of clarifies is unpersuasive. Additionally, since this definition alters the definition the agency has used since its enactment, its persuasive effect is decreased. See Morton, 415 U.S. at 237; see also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 (2012) (holding that an agency announcement of an interpretation preceded by a very lengthy period with no interpretation indicates agency considered prior practice lawful). Accordingly, the Court concludes Defendants’ interpretation is insufficient to overcome the regulation’s plain language and for the reasons stated above is contrary to law.
2. Threat of Irreparable Harm The Court next addresses irreparable harm. Defendants allege that Plaintiffs have not identified any pending or imminent enforcement action, and the Guidelines “expose [P]laintiffs to no new liability or legal requirements.” Defs.’ Resp. 7, ECF No. 40 (citing Google v. Hood, 822 F.3d 212, 227 (5th Cir. 2016). Defendants argue that, “[a]lthough [P]laintiffs do identify a small number of specific ‘policies and practices’ that they claim are in conflict with [D]efendants’ interpretation of Title IX, they have identified no enforcement action being taken against them—now or in the future—as a result of these polices.” Defs.’ Resp. 8–9, ECF No. 40. They assert that even if DOE were “to decide to bring an administrative enforcement action against plaintiffs for noncompliance . . . at some point in the future, [P]laintiffs still would be unable to make a showing of irreparable harm because they would have an opportunity to challenge the interpretation in an administrative process prior to any loss of federal funds.” Id. at 9 (quoting Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975)). Plaintiffs counter that “Defendants’ actions cause irreparable harm by forcing policy changes, imposing drastic financial consequences, and usurping [Plaintiffs’] legitimate authority.” Mot. Injunction 21, ECF No. 11. According to Plaintiffs, Defendants’ actions
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present “a Hobson’s choice between violating federal rules (labeled as regulations, guidance, and interpretations) on the one hand, and transgressing longstanding policies and practices, on the other.” Id. Thus, Plaintiffs characterize Defendants’ administrative letters and notices as “mandates” which effectively carry the force of law. Id. Plaintiffs also allege that Defendants’ rules are “irreconcilable with countless polices regarding restrooms, showers, and intimate facilities,” while threatening to override the practices of “countless schools,” which had previously been allowed to differentiate intimate facilities on the basis of biological sex consistent with Title IX, federal regulations, and laws protecting privacy and dignity. Id. (citing Mot. Injunction, Ex. P. (Thweatt Dec.) 5–7, ECF No. 11-2).
Defendants’ appear to concede the Guidelines conflict with Plaintiffs’ policies and practices, see Defs.’ Resp. 8–9; ECF No. 40 (“[P]laintiffs do identify a small number of specific ‘policies and practices’ . . . .”); however, they argue that additional threats of enforcement are required before irreparable harm exists. Case law does not support this contention. Instead the authorities hold, “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” See Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (stating, whenever an enactment of a state’s people is enjoined, the state suffers irreparable injury); accord Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.”); Maryland v. King, 133 S. Ct. 1, 3 (2012) (citing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”).
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As Defendants have conceded the conflict between the Guidelines and Plaintiffs’ policies, and Plaintiffs have identified a number of statutes that conflict, the Court concludes Plaintiffs have sufficiently demonstrated a threat of irreparable harm.20
3. Balance of Hardships and Public Interest21 The Court next considers whether the threatened injury to the Plaintiffs outweighs whatever damage the proposed injunction may cause Defendants and its impact on the public interest. Nichols, 532 F.3d at 372. Plaintiffs risk either running afoul of Defendants’ Guidelines or complying and violating various state statutes and, in some cases, their state constitutions. Mot. Injunction 21, ECF No. 11. Plaintiffs also state that they likely risk legal action from parents, students, and other members of their respective communities should they actually comply with Defendants’ Guidelines. Defendants argue these harms do not outweigh the damage that granting the injunction will cause because it will impede their ability to eliminate discrimination in the workplace and educational settings, prevent them from definitively explaining to the public the rights and obligations under these statutes, and it would have a deleterious effect on the transgendered. The Court concludes Plaintiffs have established that the failure to grant an injunction will place them in the position of either maintaining their current policies in the face of the federal government’s view that they are violating the law, or changing them to comply with the Guidelines and cede their authority over this issue. See DOJ/DOE Letter, ECF No. 6-10 (“This letter summarizes a school’s Title IX obligations regarding transgender students and explains
20 Defendants also contend the injunction should be denied because Plaintiffs delayed in seeking this relief. The DOJ/DOE Letter is dated May 13, 2016. This case was filed very soon after on May 25, 2016, and the parties reached an agreement on a briefing schedule to consider this request. The Court concludes Plaintiffs did not fail to act timely. 21 The Parties address the third and fourth Canal factors together, therefore they are treated together in this Order as well.
35

Case 7:16-cv-00054-O Document 58 Filed 08/21/16 Page 36 of 38 PageID 1046
how [DOE and DOJ] evaluate a school’s compliance with these obligations.”). Plaintiffs’ harms in this regard outweigh those identified by Defendants, particularly since the Supreme Court stayed the Fourth Circuit’s decision supporting Defendants’ position, and a decision from the Supreme Court in the near future may obviate the issues in this lawsuit. As a result, Plaintiffs interests outweigh those identified by Defendants. Further, Defendants have not offered evidence that Plaintiffs are not accommodating students who request an alternative arrangement. Indeed, the school district at issue in G.G. provided its student an accommodation.
Accordingly, the Court finds that Plaintiffs have met their burden and these factors weigh in favor of granting the preliminary injunction.
C. Scope of the Injunction Finally, the Court must determine the scope of the injunction. Plaintiffs seek to apply the injunction nationwide. Mot. Injunction 3, ECF No. 11; Pls.’ Reply 13, ECF No. 52. Defendants counter that the injunction should be narrowly tailored to Plaintiffs in the Fifth Circuit. Defs.’ Resp. 28, ECF No. 40. “Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.” Califano v. Yamasaki, 442 U.S. 682, 705 (1979). “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Id. at 702 (permitting a nationwide injunction because the class action was proper and finding that a nationwide injunction was not more burdensome than necessary to redress plaintiffs’ complaints). The Court concludes this injunction should apply nationwide. As the separate facilities provision in § 106.33 is permissive, states that authorize schools to define sex to include gender
36

Case 7:16-cv-00054-O Document 58 Filed 08/21/16 Page 37 of 38 PageID 1047
identity for purposes of providing separate restroom, locker room, showers, and other intimate facilities will not be impacted by it. Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognizes the permissive nature § 106.33. It therefore only applies to those states whose laws direct separation. However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of the state law. As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate. IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs’ application for a preliminary injunction (ECF No. 11) should be and is hereby GRANTED. See Fed. R. Civ. P. 65. It is FURTHER ORDERED that bond is set in the amount of one hundred dollars.22 See Fed. R. Civ. P. 65(c). Defendants are enjoined from enforcing the Guidelines against Plaintiffs and their respective schools, school boards, and other public, educationally-based institutions. Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex. Additionally, Defendants are enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order. All parties to this cause of action must maintain the status quo as of the date of issuance of this Order and this preliminary injunction will remain in effect until the Court rules on the merits of this claim, or until further direction from the Fifth Circuit Court of Appeals. This preliminary injunction shall be binding on Defendants and any officers, agents, servants, employees, attorneys, or other
22 Neither party addressed the appropriate bond amount should an injunction be entered.
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Case 7:16-cv-00054-O Document 58 Filed 08/21/16 Page 38 of 38 PageID 1048 persons in active concert or participation with Defendants, as provided in Federal Rule of Civil Procedure Rule 65(d)(2).
SO ORDERED on this 21st day of August, 2016. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
38

 
 Case 7:16-cv-00054-O Document 86 Filed 10/18/16 Page 1 of 7 PageID 1508

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

STATE OF TEXAS et al.,

§

§

Plaintiffs,

§

§

v.

§

§

Civil Action No. 7:16-cv-00054-O

UNITED STATES OF AMERICA

§

et al.,

§

§

Defendants.

§

ORDER Before the Court are Defendants’ Notice of Pending Litigation (ECF No. 61), filed August 30, 2016; Plaintiffs’ Notice of Pending of Litigation (ECF No. 64), filed September 9, 2016; and Defendants’ Reply Regarding Pending Litigation (ECF No. 72), filed September 14, 2016. Also before the Court are Defendants’ Motion for Clarification (ECF No. 65), filed September 12, 2016; Plaintiffs’ Response (ECF No. 73), filed September 19, 2016, and Defendants’ Reply (ECF No. 74), filed September 23, 2016. The Court held a hearing on September 30, 2016 to address the issues raised in these pleadings. See ECF No. 76. Defendants seek to clarify the Court’s preliminary injunction in this case. The parties have agreed in their briefing that the injunction is directed at the issue of access to intimate facilities. Pls.’ Resp. Mot. Clarify 3–5, ECF No. 73; Defs.’ Reply Mot. Clarify 1–2 n.1–2, ECF No. 74. At oral argument Plaintiffs’ counsel agreed that Defendants may offer textual analyses of Title IX and Title VII in cases where the Government and its agencies are defendants, and if the United States Supreme Court or any Circuit Court requests that Defendants file amicus
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Case 7:16-cv-00054-O Document 86 Filed 10/18/16 Page 2 of 7 PageID 1509
curiae briefs, they may do so. Tr’g 26–28; 32–33. Thus, the remaining issues related to the request for clarification appear to be (1) whether Defendants’ 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; (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; and (5) the geographic scope of the injuction. Mot. Clarify 6–11, 16–21, ECF No. 65.
Having considered the parties’ submissions and applicable law, the Court finds that the parties must provide additional briefing on whether the Defendants’ Guidelines are enjoined in total or whether the principal of severability applies to them, whether Title VII is implicated by this injunction, and whether the injunction applies to OSHA or DOL activity. Plaintiffs must submit a response addressing these issues on or before October 24, 2016. Defendants must submit a reply on or before October 28, 2016.
Furthermore, the Court offers the following clarifications to its August 21, 2016 Order granting the preliminary injunction (ECF No. 58): I. NATIONWIDE INJUNCTION
The Court’s August 21, 2016 Order granted a nationwide injunction. ECF No. 58. Defendants argue that “the geographic scope of the Preliminary Injunction [] could be read to exceed the proper scope of relief available to the [P]laintiffs in this case” and they contend that this “would run afoul of the Supreme Court’s admonition that ‘injunctive relief should be no more
2

Case 7:16-cv-00054-O Document 86 Filed 10/18/16 Page 3 of 7 PageID 1510
burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’” Mot. Clarify 2, 16, ECF No. 65 (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); Defs.’ Reply 2–4, ECF No. 74; Tr’g at 6–7. According to Defendants, they have a right to rely on the Guidelines in litigation before other courts that have agreed with their interpretation of sex in Title VII and IX to mean gender identity. Tr’g at 7.
Plaintiffs argue that “Defendants are federal administrators and agencies, with footings in every state and territory” and they are “collectively and systematically engaged in enforcing a pervasive and unlawful rule across the country . . . .” Resp. Mot. Clarify 9–10, ECF No. 73. “An injunction that precludes Defendants from acting everywhere[,]” Plaintiffs contend, “is quite clear.” Id.; Tr’g at 17–19 (arguing that the geographic extent of the harm Plaintiffs suffer is nationwide). The Court agrees that the scope of this injunction should be and is nationwide.
As stated in one of the most recent Texas v. United States Fifth Circuit opinions, “the Constitution vests the District Court with ‘the judicial Power of the United States[,]’” and “[t]hat power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.” Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (quoting U.S. Const. art. III, §1), aff’d by equally divided Supreme Court, 136 S. Ct. 2271 (June 23, 2016) (finding that a nationwide injunction was warranted because “partial implementation of DAPA would ‘detract from the integrated scheme of regulation created by Congress,’” and create a “substantial likelihood that a geographically-limited injunction would be ineffective . . . .”); see also Chevron Chem. Co. v. Voluntary Purchasing Grps., 659 F.2d 695, 705–06 (5th Cir. 1981) (directing the district court to issue broad injunction on remand in a trade dress case); Califano, 442 U.S. at 702 (finding that the
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scope of an injunction is dictated by the extent of the violation, not the geographical extent of the plaintiff class, thus a nationwide injunction was consistent with the principles of equity); Brennan v. J.M. Fields, Inc., 488 F.2d 443, 449–50 (5th Cir. 1973) (affirming a nationwide injunction against a national chain); Hodgson v. First Fed. Sav. & Loan Ass’n, 455 F.2d 818, 826 (5th Cir. 1972) (“[C]ourts should not be loath to issue injunctions of general applicability . . . . The injunctive processes are a means of effecting general compliance with national policy as expressed by Congress, a[s] public policy judges too must carry out—actuated by the spirit of the law and not begrudgingly as if it were a newly imposed fiat of a presidium.”); Wirtz v. Ocala Gas Co., 336 F.2d 236, 240 (5th Cir. 1964) (describing certain FLSA injunctions as “sufficiently broad and general to enjoin any practices which would constitute violations of the Act’s provisions”).
It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate. Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide. Defendants are a group of agencies and administrators capable of enforcing their Guidelines nationwide, affecting numerous state and school district facilities across the country. Texas, 809 F.3d at 187–88. Should the Court only limit the injunction to the plaintiff states who are a party to this cause of action, the Court risks a “substantial likelihood that a geographically-limited injunction would be ineffective.” Id.1
1 As noted previously, “Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognizes the permissive nature § 106.33. It therefore only applies to those states whose laws direct separation. However, [this] injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of the state law.” Order 37, ECF No. 58.
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Accordingly, Defendants Motion to Clarify is DENIED as they request that the Court limit the injunction to plaintiff states. II. INJUNCTION DOES NOT AFFECT DEFENDANTS’ CORE MISSIONS
Defendants argue that the Court’s Preliminary Injunction Order (ECF No. 58) should clarify that it does not enjoin the EEOC from fulfilling statutory duties necessary to protect the rights of individuals alleging discrimination and that it does not affect programs which combat discrimination based on race, national origin, or disability and other activities, or limit the enforcement of anti-discrimination statues outside the plaintiff states. See Mot. Clarify 6–11, 16– 21, ECF No. 65 (citing 42 U.S.C. § 2000e-5(b), (e)(1), (f)(1); E.E.O.C. v. Bass Pro Outdoors World, L.L.C., No 15-20078, 2016 WL 3397696, at *8 (5th Cir. June 17, 2016); 29 C.F.R § 1614). The Court CLARIFIES that these duties are not affected by the Preliminary Injunction Order (ECF No. 58).
Indeed, the Court’s Order did not purport to alter any statute or statutory duties Defendants may exercise in pursuit of their governmental duties under Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and Title II of the American with Disabilities Act of 1990. This injunction also does not affect a school’s obligation to investigate and remedy student complaints of sexual harassment, sex stereotyping, and bullying.
Defendants are simply prevented from using the Guidelines to argue that the definition of “sex” as it relates to intimate facilities includes gender identity. Order 36–37, ECF No. 58. The Court’s preliminary injunction neither affects EEOC’s fulfillment of its statutory duties, nor Defendants’ ability to enforce anti-discrimination statutes nationwide. The injunction does not affect those programs addressing discrimination on the basis of race, national origin, or disability.
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Defendants are simply “enjoined from using the Guidelines or asserting the Guidelines carry
weight in any litigation initiated following the date of [its August 21, 2016] Order.”2 Order 37,
ECF No. 58.
III. CONCLUSION
Accordingly, the Court clarifies that: (1) the preliminary injunction applies nationwide; and
(2) Defendants’ 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
(ECF No. 58).
The injunction is limited to the issue of access to intimate facilities. Defendants are
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
2 Plaintiffs have also listed numerous cases that they believe are not enjoined by the Court’s preliminary injunction in their Notice of Pending Litigation. See Not. Pending Lit. 10–13, ECF No. 64. The Court agrees and clarifies that these cases are not included in the injunction. At oral argument, Defendants asked the Court to restrict the injunction to litigation in which the plaintiff states are involved. Tr’g at 7–8. The Court clarifies that the preliminary injunction attaches to Defendant’s conduct in litigation not substantially developed before the August 21, 2016 Order (ECF No. 58), regardless of whether plaintiff states are involved. The Court seeks to avoid unnecessarily interfering with litigation concerning access to intimate facilities that was substantially developed before the Court’s Order granting the preliminary injunction. In pending litigation concerning access to intimate facilities, if no responsive pleadings were filed and no substantive rulings issued before August 21, 2016, the preliminary injunction applies and Defendants are enjoined from relying on the Guidelines. The injunction applies in part to United States v. Southeastern Okla. Univ., a case filed by the DOJ against a public university in Oklahoma (a plaintiff state here) more than a year before the Court’s August 21, 2016 injunction. No. 5:15-cv-324 (W.D. Okla.). Although the DOJ did not make the issue at the heart of this injunction (access to intimate facilities) a central feature of the complaint, the aggrieved private party has now intervened and introduced new claims that involve access to intimate facilities. No. 15:15-cv-324, ECF No. 23. Because litigation in Southeastern was substantially underway before the issuance of this injunction, DOJ’s legal arguments in the case fall outside the scope of this injunction. However, Defendants (including DOJ) are still “enjoined from enforcing the Guidelines against Plaintiffs and their respective schools, school boards, and other public, educationallybased institutions” (including Southeastern Oklahoma State University) and “enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex”. ECF No. 58 at 37.
6

Case 7:16-cv-00054-O Document 86 Filed 10/18/16 Page 7 of 7 PageID 1514 Court or any Circuit Court request that Defendants file amicus curiae briefing on this issue. The parties are ORDERED to brief the remaining issues of whether the Defendants’ Guidelines are 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. Plaintiffs must respond on or before October 24, 2016, and Defendants must reply on or before October 28, 2016.
SO ORDERED on this 19th day of October, 2016. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
7

 
 Case 7:16-cv-00054-O Document 88 Filed 10/20/16 Page 1 of 3 PageID 1535

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

STATE OF TEXAS, et al., Plaintiffs, v.
UNITED STATES OF AMERICA, et al., Defendants.

)

)

)

)

)

Case No. 7:16-cv-54-O

)

)

)

)

)

NOTICE OF APPEAL

PLEASE TAKE NOTICE that Defendants, the United States of America; the United States

Department of Education; the United States Department of Justice; the United States Department

of Labor; the United States Equal Employment Opportunity Commission; John B. King, Jr., in his

official capacity as Secretary of Education; Loretta E. Lynch, in her official capacity as Attorney

General of the United States; Vanita Gupta, in her official capacity as Principal Deputy Assistant

Attorney General; Thomas E. Perez, in his official capacity as Secretary of Labor; David Michaels,

in his official capacity as Assistant Secretary of Labor for Occupational Safety and Health; and

Jenny R. Yang, in her official capacity as Chair of the United States Equal Employment

Opportunity Commission, hereby appeal to the United States Court of Appeals for the Fifth Circuit

from the Preliminary Injunction Order, ECF No. 58, entered on August 21, 2016, and from the

Order, ECF No. 86, entered on October 18, 2016.

Dated: October 20, 2016

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

JENNIFER D. RICKETTS Director, Federal Programs Branch

1

Case 7:16-cv-00054-O Document 88 Filed 10/20/16 Page 2 of 3 PageID 1536 SHEILA M. LIEBER Deputy Director, Federal Programs Branch /s/ Benjamin L. Berwick l BENJAMIN L. BERWICK (MA Bar No. 679207) JAMES BICKFORD (NY Bar No. 5163498) Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 1 Courthouse Way, Suite 9200 Boston, MA 02210 Telephone: (617) 748-3129 Facsimile: (617) 748-3965 Email: Benjamin.L.Berwick@usdoj.gov Counsel for Defendants
2

Case 7:16-cv-00054-O Document 88 Filed 10/20/16 Page 3 of 3 PageID 1537 CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2016, a copy of the foregoing Notice of Appeal was filed electronically via the Court’s ECF system, which effects service upon counsel of record.
/s/ Benjamin L. Berwick Benjamin L. Berwick
3

 
 Case 7:16-cv-00054-O Document 100 Filed 11/20/16 Page 1 of 6 PageID 1792

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

STATE OF TEXAS et al.,

§

§

Plaintiffs,

§

§

v.

§

§

Civil Action No. 7:16-cv-00054-O

UNITED STATES OF AMERICA

§

et al.,

§

§

Defendants.

§

ORDER Before the Court are Defendants’ Motion for Partial Stay of the Court’s Preliminary Injunction Order (ECF No. 95), filed November 7, 2016; and Plaintiffs’ Response (ECF No. 99), filed November 15, 2016. Defendants seek a partial stay, pending appeal, as to the preliminary injunction’s application to states and entities not plaintiffs in this case and have requested expedited consideration of their motion. Id. at 7. After considering the briefing and applicable law, the Court finds that Defendants’ motion for partial stay of the Court’s preliminary injunction should be and is hereby DENIED. I. BACKGROUND The Court issued the nationwide preliminary injunction at issue on August 21, 2016. ECF No. 58. Defendants filed a motion for clarification on September 12, 2016, requesting, among other things, that the Court narrow the scope of its injunction to plaintiff states. See Defs.’ Mot. Clarify, ECF No. 65. The Court issued clarification on October 18, 2016, reemphasizing the injunction’s nationwide scope and specifying its impact on Defendants. ECF No. 86. Two days
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later, Defendants filed a Notice of Appeal to the Fifth Circuit Court of Appeals seeking interlocutory review of the Court’s injunction and clarification order. ECF No. 88. In the present motion, Defendants ask the Court to reconsider the nationwide scope of its injunction by requesting a partial stay, pending appeal, of the injunction’s application to non-plaintiff states and entities. Defs.’ Mot. 7, ECF No. 95. Defendants reassert several arguments the Court previously addressed at length and the Court will not repeat its analysis on those issues. II. ANALYSIS
A. Defendants are Unlikely to Succeed on Appeal and Suffer No Irreparable Injury A party seeking stay of an injunction bears the burden of demonstrating (1) likelihood of success on the merits; (2) likelihood the applicant will be irreparably injured absent a stay; (3) that issuance of a stay will not substantially injure the other parties; and (4) that the stay is in the public interest. See Texas v. United States, 787 F.3d 733, 746–47 (5th Cir. 2015) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). The first two factors “are the most critical.” Nken, 556 U.S. at 434. “A stay is not a matter of right, even if irreparable injury might otherwise result,” and the propriety of issuing a stay depends on the circumstances of the particular case. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013) (quoting Nken, 556 U.S. at 427). The decision to grant or deny a stay is committed to the trial court’s sound discretion. Nken, 556 U.S. at 433. The Court remains convinced that Plaintiffs, not Defendants, have shown a great likelihood of success on the merits of their claims; and incorporates herein the analysis developed in its August 21, 2016 Order issuing the preliminary injunction. Aug. 21, 2016 Order 2, ECF No. 58 (finding “Defendants failed to comply with the Administrative Procedures Act by: (1) foregoing
2

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the Administrative Procedures Act’s notice and comment requirements; and (2) issuing directives which contradict the existing legislative and regulatory texts.”).
Additionally, Defendants fail to show they will suffer irreparable injury absent a stay. The first part of the enjoined Guidelines1 was issued in 2010 and the most recent component on May 13, 2016, just days after the Department of Justice (“DOJ”) seemingly began nationwide enforcement, suing North Carolina for upholding the right to sex-designated intimate facilities.2 Aug. 21, 2016 Order 3, ECF No. 58. The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which Defendants claim now includes gender identity—were promulgated more than forty years ago.3 See id. The federal government did not articulate, much less enforce, the Guidelines’ interpretation of sex as including gender identity for nearly fifty years after Title VII was passed in 1964 and the Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the Guidelines delayed until their legality is established.
In requesting the Court remove non-plaintiff states from the injunction’s reach, Defendants claim that “[non-plaintiff states] are in a better position than Plaintiffs or this Court to assess their own interests and injuries.” Defs.’ Mot. 16, ECF No. 95. But the injunction only restricts Defendants from enforcing or relying on the Guidelines; and leaves non-plaintiff states free to
1 The Guidelines refer to the documents attached to Plaintiffs’ Amended Complaint: (1) Ex. A (DOE Bullying Memo 2010), ECF No. 6-1; (2) Ex. B (DOE Questions and Answers on Title IX and Sexual Violence Memo) (“DOE Q&A Memo), ECF No. 6-2; (3) Ex. C (“Holder Memo 2014”), ECF No. 6-3, (4) Ex. D (OSHA Best Practice Guide), ECF No. 6-4; (5) Ex. H (EEOC Fact Sheet), ECF No. 6-8; and (6) Ex. J (DOJ/DOE Dear Colleague Letter), ECF No. 6-10. 2 United States v. North Carolina, No. 1:16-cv-425 (M.D.N.C.) (filed May 9, 2016). 3 Title IX of the Education Amendments of 1972 (“Title IX”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).
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exercise their judgment in crafting and enforcing legislation with respect to intimate facilities.4 Defendants also claim the injunction burdens non-plaintiff states by “denying them the benefit of federal antidiscrimination enforcement.” Defs.’ Mot. 16, ECF No. 95. But non-plaintiff states continue to enjoy the benefit of all federal antidiscrimination enforcement that falls outside the injunction—combatting “discrimination based on race, national origin, or disability.” Aug. 21, 2016 Order 5, ECF No. 86. Further, the injunction “does not affect a school’s obligation to investigate and remedy student complaints of sexual harassment, sex stereotyping, and bullying.” Oct. 18, 2016 Order 5, ECF No. 86. Defendants grossly misstate the injunction’s scope in claiming it prohibits states from receiving “federal enforcement of the civil rights laws.” Defs.’ Mot. 16, ECF No. 95. The Court emphasized in its clarification order and reiterates here that the injunction does not prevent Defendants from continuing their core mission of enforcing the federal civil rights laws enacted by Congress.
B. Breadth of Injunction As previously emphasized, this Court possesses the power to issue a nationwide injunction and finds such relief appropriate in the present case. “[T]he Constitution vests the District Court with ‘the judicial power of the United States.’ That power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.” Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (quoting U.S. Const. art. III, §1). “The scope of injunctive relief is dictated by the
4 “As the separate facilities provision in [34 C.F.R.] § 106.33 is permissive, states that authorize schools to define sex to include gender identity for purposes of providing separate restroom, locker room, showers, and other intimate facilities will not be impacted by [the preliminary injunction].” Aug. 21, 2016 Order 36–37, ECF No. 58.
4

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extent of the violation established, not by the geographical extent of the plaintiff class.” Califano v. Yamaski, 442 U.S. 682, 702 (1979).
A nationwide injunction is appropriate in this case because Plaintiffs have presented a strong facial challenge to the Guidelines, arguing they violate the Administrative Procedures Act (“APA”) by skirting the notice and comment process and contradicting existing law. Where a party brings a facial challenge alleging that agency action violated APA procedures, a nationwide injunction is appropriate. See, e.g., Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1407–08 (D.C. Cir. 1998) (invalidating an agency rule and affirming the nationwide injunction); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).
Federal courts in the Fifth Circuit regularly enjoin enforcement of new federal regulations challenged as unlawful. See, e.g., Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015) (enjoining executive order inconsistent with immigration statutes); Nat’l Fed’n of Indep. Bus. v. Perez, No. 5:16-cv-00066 (N.D. Tex. June 27, 2016), appeal pending (5th Cir.) (permanently enjoining Department of Labor persuader rule inconsistent with labor statutes); Associated Builders & Contractors of Se. Tex. v. Rung, No. 1:16-cv-00425 (E.D. Tex. Oct. 24, 2016) (enjoining executive order and agency guidance inconsistent with labor statutes). This injunction, and the justification for its nationwide scope, centers on agency regulations that Plaintiffs allege are invalid on their face. But none of the authorities relied on by Defendants in their request for a partial stay center on agency regulations challenged as facially invalid. See generally Defs.’ Mot., ECF No. 95. The Court finds the Guidelines’ alleged facial defects warrant broad injunctive relief.
5

Case 7:16-cv-00054-O Document 100 Filed 11/20/16 Page 6 of 6 PageID 1797 The Court also finds Defendants’ appeal to the importance of circuit splits unpersuasive
given the Supreme Court’s recent grant of certiorari in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), recalling mandate & issuing stay, 136 S. Ct. 2442 (2016), cert. granted, 2016 WL 4565643 (U.S. Oct. 28, 2016) (No. 16-273). The Supreme Court’s upcoming review of G.G. diminishes the usual importance of a circuit split and may determine the legality of the Guidelines at issue here, abbreviating any alleged harm suffered by Defendants. See Defs.’ Mot. 12–14, ECF No. 95; see also Pls.’ Resp. 7–8, ECF No. 99. III. CONCLUSION
For the foregoing reasons, the Court finds that Defendants failed to demonstrate a likelihood of success or irreparable harm sufficient to justify a partial stay of the Court’s preliminary injunction. Accordingly, the Court hereby DENIES Defendants’ Motion for a Partial Stay of the Court’s August 21, 2016 Preliminary Injunction Order (ECF No. 95).
SO ORDERED on this 20th day of November, 2016. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
6

 
 Case 7:16-cv-00054-O Document 128 Filed 03/03/17 Page 1 of 4 PageID 1904

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

STATE OF TEXAS;

§

HARROLD INDEPENDENT

§

SCHOOL DISTRICT (TX);

§

STATE OF ALABAMA;

§

STATE OF WISCONSIN;

§

STATE OF WEST VIRGINIA;

§

STATE OF TENNESSEE;

§

ARIZONA DEPARTMENT

§

OF EDUCATION;

§

HEBER-OVERGAARD

§

UNIFIED SCHOOL DISTRICT (AZ); §

PAUL LePAGE, Governor of the

§

State of Maine;

§

STATE OF OKLAHOMA;

§

STATE OF LOUISIANA;

§

STATE OF UTAH;

§

STATE OF GEORGIA;

§

STATE OF MISSISSIPPI,

§

by and through Governor Phil Bryant; §

COMMONWEALTH OF KENTUCKY, §

by and through

§

Governor Matthew G. Bevin,

§

§

Plaintiffs,

§

§

v.

§

§

UNITED STATES OF AMERICA;

§

UNITED STATES DEPARTMENT

§

OF EDUCATION; BETSY DEVOS,

§

in her Official Capacity as United

§

States Secretary of Education; UNITED §

STATES DEPARTMENT OF JUSTICE; §

JEFFERSON BEAUREGARD “JEFF” §

SESSIONS, III, in his Official Capacity §

as Attorney General of the United

§

States; THOMAS E. WHEELER, II, in §

his Official Capacity as Acting Principal §

Deputy Assistant Attorney General;

§

UNITED STATES EQUAL

§

CIVIL ACTION NO. 7:16-cv-00054-O

Plaintiffs’ Notice of Voluntarily Dismissal Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i)

Page 1

Case 7:16-cv-00054-O Document 128 Filed 03/03/17 Page 2 of 4 PageID 1905

EMPLOYMENT OPPORTUNITY

§

COMMISSION; VICTORIA A. LIPNIC, §

in her Official Capacity as the Acting §

Chair of the United States Equal

§

Employment Opportunity Commission; §

UNITED STATES DEPARTMENT OF §

LABOR; EDWARD HUGLER, in his §

Official Capacity as Acting United

§

States Secretary of Labor; and

§

DOROTHY DOUGHERTY, in her

§

Official Capacity as the Deputy

§

Assistant Secretary of Labor for

§

the Occupational Safety and Health

§

Administration,

§

§

Defendants.

§

PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(i)
In a Dear Colleague letter dated February 22, 2017, the U.S. Department of Justice and U.S. Department of Education jointly withdrew the statements of policy and guidance reflected in:
• Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015; and
• Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016.
The U.S. Department of Justice and U.S. Department of Education also made clear that “[t]he Departments thus will not rely on the views expressed within them.”
Therefore, pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Plaintiffs hereby give notice that the above-captioned action is voluntarily dismissed, against the Defendants, without prejudice. Plaintiffs reserve the right to reinstitute their claims against Defendants to preserve and defend their sovereign power, authority, and rights, as well as defend the rule of law.

Plaintiffs’ Notice of Voluntarily Dismissal Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i)

Page 2

Case 7:16-cv-00054-O Document 128 Filed 03/03/17 Page 3 of 4 PageID 1906

The Court’s Preliminary Injunction Order (ECF No. 58) is necessarily dissolved by this dismissal. See Francis v. Johnson, 129 F.3d 610 (5th Cir. 1997) (unpublished) (citing 11A Charles Alan Wright et al., Federal Practice & Procedure § 2947 at 126 n.19 (2d ed. 1995); Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir. 1994)).
Each party will bear its own fees and costs associated with the district-court litigation.
Respectfully submitted this the 3rd day of March, 2017,

STEVE MARSHALL Attorney General of Alabama
BRAD D. SCHIMEL Attorney General of Wisconsin
PATRICK MORRISEY Attorney General of West Virginia
HERBERT SLATERY, III Attorney General of Tennessee
MARK BRNOVICH Attorney General of Arizona
MIKE HUNTER Attorney General of Oklahoma
JEFF LANDRY Attorney General of Louisiana
SEAN REYES Attorney General of Utah
CHRISTOPHER M. CARR Attorney General of Georgia

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY D. STARR Deputy First Assistant Attorney General
MICHAEL C. TOTH Senior Counsel to the Attorney General
ANDREW D. LEONIE Associate Deputy Attorney General
AUSTIN R. NIMOCKS Associate Deputy Attorney General
/s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 austin.nimocks@oag.texas.gov
DAVID J. HACKER Senior Counsel
JOEL STONEDALE Counsel
Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 Tel: 512-936-1414
Attorneys for Plaintiffs

Plaintiffs’ Notice of Voluntarily Dismissal Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i)

Page 3

Case 7:16-cv-00054-O Document 128 Filed 03/03/17 Page 4 of 4 PageID 1907
CERTIFICATE OF SERVICE
I, Austin R. Nimocks, hereby certify that on this the 3rd day of March, 2017, a true and correct copy of the foregoing document was transmitted via using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Austin R. Nimocks Austin R. Nimocks

Plaintiffs’ Notice of Voluntarily Dismissal Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i)

Page 4

 
 Case: 16-11534 Document: 00513896472 Page: 1 Date Filed: 03/03/2017 Case 7:16-cv-00054-O Document 129 Filed 03/03/17 Page 1 of 2 PageID 1908

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED
March 03, 2017

___________________

KAREN MITCHELL CLERK, U.S. DISTRICT COURT

No. 16-11534
____7_:_1_6_-c_v__-5_4_-_O_____

STATE OF TEXAS; HARROLD INDEPENDENT SCHOOL DISTRICT (TX); STATE OF ALABAMA; STATE OF WISCONSIN; STATE OF TENNESSEE; ARIZONA DEPARTMENT OF EDUCATION; HEBER-OVERGAARD UNIFIED SCHOOL DISTRICT (AZ); GOVERNOR OF MAINE PAUL LEPAGE; STATE OF OKLAHOMA; STATE OF LOUISIANA; STATE OF UTAH; STATE OF GEORGIA; STATE OF WEST VIRGINIA; STATE OF MISSISSIPPI; STATE OF KENTUCKY,

Plaintiffs - Appellees

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF EDUCATION; JOHN B. KING, in his Official Capacity as United States Secretary of Education; UNITED STATES DEPARTMENT OF JUSTICE; JEFFERSON B. SESSIONS, III, in his Official Capacity as Attorney General of the United States; VANITA GUPTA, in her Official Capacity as Principal Deputy Assistant Attorney General; UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JENNY R. YANG, in her Official Capacity as the Chair of the United States Equal Employment Opportunity Commission; UNITED STATES DEPARTMENT OF LABOR; THOMAS E. PEREZ, in his Official Capacity as United States Secretary of Labor; DAVID MICHAELS, in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and Health Administration,

Defendants - Appellants

_______________________
Appeal from the United States District Court for the Northern District of Texas, Wichita Falls _______________________

Case: 16-11534 Document: 00513896472 Page: 2 Date Filed: 03/03/2017 Case 7:16-cv-00054-O Document 129 Filed 03/03/17 Page 2 of 2 PageID 1909
CLERK'S OFFICE: Under FED R. APP. P. 42(b), the appeal is dismissed as of March 03, 2017,
pursuant to appellant's motion. LYLE W. CAYCE Clerk of the United States Court of Appeals for the Fifth Circuit
By: _________________________ Melissa V. Mattingly, Deputy Clerk ENTERED AT THE DIRECTION OF THE COURT
Certified as a true copy and issued as the mandate on Mar 03, 2017 Attest: Clerk, U.S. Court of Appeals, Fifth Circuit

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS; HARROLD INDEPENDENT SCHOOL DISTRICT (TX); STATE OF ALABAMA; STATE OF WISCONSIN; STATE OF TENNESSEE; ARIZONA DEPARTMENT OF EDUCATION; HEBER-OVERGAARD UNIFIED SCHOOL DISTRICT (AZ); GOVERNOR OF MAINE PAUL LEPAGE; STATE OF OKLAHOMA; STATE OF LOUISIANA; STATE OF UTAH; STATE OF GEORGIA; STATE OF WEST VIRGINIA; STATE OF MISSISSIPPI; STATE OF KENTUCKY,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF EDUCATION; JOHN B. KING, in his Official Capacity as United States Secretary of Education; UNITED STATES DEPARTMENT OF JUSTICE; JEFF SESSIONS, in his Official Capacity as Attorney General of the United States; VANITA GUPTA, in her Official Capacity as Principal Deputy Assistant Attorney General; UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JENNY R. YANG, in her Official Capacity as the Chair of the United States Equal Employment Opportunity Commission; UNITED STATES DEPARTMENT OF LABOR; THOMAS E. PEREZ, in his Official Capacity as United States Secretary of Labor; DAVID MICHAELS, in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and Health Administration,
Defendants-Appellants.

No. 16-11534

UNOPPOSED MOTION FOR VOLUNTARY DISMISSAL Pursuant to Federal Rule of Appellate Procedure 42(b), defendants-appellants United States of America et al. hereby move voluntarily to dismiss this appeal “on

terms agreed to by the parties,” Fed. R. App. P. 42(b), as follows: 1. Defendants-appellants will dismiss the pending Fifth Circuit appeal. Each
party will bear its own fees and costs associated with the appeal. 2. Upon dismissal of the appeal, plaintiffs-appellees State of Texas et al. will
voluntarily dismiss their pending lawsuit in district court pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), which will have the effect of vacating the district court’s August 21, 2016 preliminary injunction (as clarified by October 18, 2016 order). Each party will bear its own fees and costs associated with the district-court litigation.
3. We have consulted with counsel for plaintiffs-appellees, who have indicated that plaintiffs-appellees do not oppose this motion.
2

CONCLUSION For the foregoing reasons, defendants-appellants’ unopposed motion for voluntary dismissal should be granted.
Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General AUGUST E. FLENTJE Special Counsel to the Assistant
Attorney General MARK B. STERN MARLEIGH D. DOVER /s/ Jeffrey E. Sandberg JEFFREY E. SANDBERG THAIS-LYN TRAYER Attorneys, Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Avenue NW, Rm. 7214 Washington, DC 20530
(202) 532-4453 Counsel for Defendants-Appellants United States of America, et al.
March 2, 2017
3

CERTIFICATE OF COMPLIANCE I hereby certify that this motion complies with the word limit of Fed. R. App. P. 27(d)(2)(A) because, excluding the parts exempted by Fed. R. App. P. 32(f), it contains 155 words, according to the count of Microsoft Word. I further certify that this joint motion complies with the requirements of Fed. R. App. P. 32(a)(5) because it has been prepared in Garamond, a proportionally spaced typeface.
/s/ Jeffrey E. Sandberg Jeffrey E. Sandberg Attorney, U.S. Department of Justice Civil Division, Appellate Staff Counsel for the United States of America, et al.
CERTIFICATE OF SERVICE I hereby certify that on March 2, 2017, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users, and that service will be accomplished by the appellate CM/ECF system.
/s/ Jeffrey E. Sandberg Jeffrey E. Sandberg Attorney, U.S. Department of Justice Civil Division, Appellate Staff Counsel for the United States of America, et al.

 
 Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 1 of 19
U.S. District Court Northern District of Texas (Wichita Falls) CIVIL DOCKET FOR CASE #: 7:16−cv−00054−O

CLOSED

State of Texas, et al. v. United States of America, et al. Assigned to: Judge Reed C. O'Connor Related Case: 7:16−cv−00108−O Case in other court: USCA5, 16−11534 Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 05/25/2016 Date Terminated: 03/03/2017 Jury Demand: None Nature of Suit: 890 Other Statutes: Other Statutory Actions Jurisdiction: U.S. Government Defendant

State of Texas

represented by Austin Nimocks Office of the Attorney General of Texas 209 West 14th Street 8th Floor Austin, TX 78701 512−936−2902 Fax: 512−936−0545 Email: austin.nimocks@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff
Harrold Independent School District (TX)

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Alabama

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Wisconsin

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Tennessee

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff Arizona Department of Education

represented by Austin Nimocks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff
Heber−Overgaard Unified School District (AZ)

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 2 of 19

Bar Status: Admitted/In Good Standing

Plaintiff Governor of Maine Paul LePage

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Oklahoma

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Louisiana

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Utah

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Georgia

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of West Virginia

represented by Austin Nimocks (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Mississippi

represented by Austin Nimocks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff State of Kentucky

represented by Austin Nimocks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V. Defendant United States of America

represented by Benjamin Leon Berwick US Department of Justice Civil Division, Federal Programs Branch 1 Courthouse Way

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 3 of 19

Suite 9200 Boston, MA 02210 617−748−3129 Fax: 617−748−3965 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
United States Department of Education

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
John B. King in his Official Capacity as United States Secretary of Education

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant United States Department of Justice

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Loretta Lynch in her Official Capacity as Attorney General of the United States

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Vanita Gupta in her Official Capacity as Prinicipal Deputy Assistant Attorney General

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
United States Equal Employment Opportunity Commission

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Jenny R Yang in her Official Capacity as the Chair of the United States Equal Employment Opportunity Commission

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant United States Department of Labor

represented by

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 4 of 19

Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Thomas E. Perez in his Official Capacity as United States Secretary of Labor

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
David Michaels in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and Health Administration

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Movant American Civil Liberties Union Foundation
Movant American Civil Liberties Union of Texas
Movant GLBTQ Legal Advocates & Defenders

represented by Kenneth D Upton , Jr Lambda Legal Defense & Education Fund 3500 Oak Lawn Ave Suite 500 Dallas, TX 75219−6722 214/219−8585 Fax: 214/219−4455 FAX Email: kupton@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Paul David Castillo Lambda Legal Defense and Education Fund Inc 3500 Oak Lawn Ave Suite 500 Dallas, TX 75219 214/219−8585 Fax: 214/219−4455 Email: pcastillo@lambdalegal.org ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Paul David Castillo (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 5 of 19

Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Paul David Castillo (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Movant
Lambda Legal Defense and Education Fund, Inc.

represented by Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Paul David Castillo (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Movant National Center for Lesbian Rights

represented by Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Paul David Castillo (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Movant Transgender Law Center

represented by Kenneth D Upton , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Paul David Castillo (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Movant Dr. Rachel Jona Tudor

represented by Ezra Ishmael Young Transgender Legal Defense and Education Fund, Inc. 20 West 20th Street, Suite 705 New York, NY 10011 949−291−3185 Fax: 646−930−5654 Email: eyoung@transgenderlegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Marie Eisela Galindo

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 6 of 19

1500 Broadway Suite 1120 Lubbock, TX 79401 806−549−4507 Fax: 806−370−2703 Email: megalindo@thegalindolawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Movant
Rhonda Fleming TERMINATED: 02/03/2017

represented by Rhonda Fleming # 20446−009 BOP Carswell FMC P.O. BOX 27137 Fort Worth, TX 76127 PRO SE

Movant
Charlsa Suzanne Little TERMINATED: 02/03/2017

represented by Charlsa Suzanne Little #47394−177 BOP Bryan FPC PO Box 2149 Bryan, TX 77805 PRO SE

Movant
Jeanette Driever TERMINATED: 02/03/2017

represented by Jeanette Driever 10965023 BOP Carswell FMC P.O. BOX 27137 Fort Worth, TX 76127 PRO SE

Amicus
Eagle Forum Education & Legal Defense Fund

represented by Karen Bryant Tripp Karen B. Tripp, Attorney at Law P.O. Box 1301 Houston, TX 77251−1301 713−658−9323 Email: tripp.karen@gmail.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Amicus Governor C. L. "Butch" Otter

represented by Cally Younger Office of Governor C L "Butch" Otter PO Box 83720 Boise, ID 83720 208−854−3022 Email: cally.younger@gov.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Amicus
State of Washington Amicus States [Washington/New York] et al.

represented by Alan D Copsey Office of the Attorney General of Washington 1125 Washington Street SE PO Box 40100

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 7 of 19

Olympia, WA 98504−0100 360−664−2963 Email: alanc@atg.wa.gov PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Amicus
Letitia James, Public Advocate for the City of New York

represented by Molly Thomas−Jensen Office of the Public Advocate for the City of New York 1 Centre Street 15th Floor North New York, NY 10007 212−669−4092 Fax: 212−669−4701 Email: mthomas−jensen@pubadvocate.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Date Filed 05/25/2016
05/25/2016 05/25/2016 05/25/2016

# Docket Text
1 COMPLAINT against Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang filed by State of Utah, Heber−Overgaard Unified School District (AZ), Harrold Independent School District (TX), State of Texas, State of West Virginia, Arizona Department of Education, State of Alabama, State of Oklahoma, State of Georgia, Paul LePage, State of Wisconsin, State of Louisiana, State of Tennessee. (Filing fee $400; Receipt number 0539−7604002) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Cover Sheet, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s), # 15 Exhibit(s), # 16 Additional Page(s)) (Nimocks, Austin) (Entered: 05/25/2016)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Louisiana, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Nimocks, Austin) (Entered: 05/25/2016)
3 Request for Clerk to issue Summons filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Louisiana, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Additional Page(s), # 2 Additional Page(s), # 3 Additional Page(s), # 4 Additional Page(s), # 5 Additional Page(s), # 6 Additional Page(s), # 7 Additional Page(s), # 8 Additional Page(s), # 9 Additional Page(s), # 10 Additional Page(s)) (Nimocks, Austin) (Entered: 05/25/2016)
4 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge. Clerk to provide copy to plaintiff if not received electronically. (plp) (Entered:

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 8 of 19

05/25/2016 06/15/2016
06/17/2016
06/20/2016 06/20/2016 06/20/2016 07/06/2016

05/25/2016)
5 Summons issued as to All Defendants, U.S. Attorney, and U.S. Attorney General. (plp) (Entered: 05/25/2016)
6 AMENDED COMPLAINT Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief against Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang filed by State of Utah, Heber−Overgaard Unified School District (AZ), Harrold Independent School District (TX), State of Texas, State of West Virginia, Arizona Department of Education, State of Alabama, State of Oklahoma, State of Georgia, Paul LePage, State of Wisconsin, State of Louisiana, State of Tennessee, State of Mississippi, State of Kentucky. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C, # 4 Exhibit(s) Exhibit D, # 5 Exhibit(s) Exhibit E, # 6 Exhibit(s) Exhibit F, # 7 Exhibit(s) Exhibit G, # 8 Exhibit(s) Ehxibit H, # 9 Exhibit(s) Exhibit I, # 10 Exhibit(s) Exhibit J, # 11 Exhibit(s) Exhibit K, # 12 Exhibit(s) Exhibit L, # 13 Exhibit(s) Exhibit M, # 14 Exhibit(s) Exhibit N) (Nimocks, Austin) (Entered: 06/15/2016)
7 Request for Clerk to issue Summons filed by Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Additional Page(s), # 2 Additional Page(s), # 3 Additional Page(s), # 4 Additional Page(s), # 5 Additional Page(s), # 6 Additional Page(s), # 7 Additional Page(s), # 8 Additional Page(s), # 9 Additional Page(s), # 10 Additional Page(s)) (Nimocks, Austin) (Main Document 7 replaced on 11/17/2016) (skg). (Attachment 1 replaced on 11/17/2016) (skg). (Attachment 2 replaced on 11/17/2016) (skg). (Attachment 3 replaced on 11/17/2016) (skg). (Attachment 4 replaced on 11/17/2016) (skg). (Attachment 5 replaced on 11/17/2016) (skg). (Attachment 6 replaced on 11/17/2016) (skg). (Attachment 7 replaced on 11/17/2016) (skg). (Attachment 8 replaced on 11/17/2016) (skg). (Attachment 9 replaced on 11/17/2016) (skg). (Attachment 10 replaced on 11/17/2016) (skg). (Entered: 06/17/2016)
8 CERTIFICATE OF SERVICE by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re 6 Amended Complaint,,,,,, regarding #6 Amended Complaint (Nimocks, Austin) (Main Document 8 replaced on 6/20/2016) (baa). (Entered: 06/20/2016)
9 Summons Reissued as to All Defendants, U.S. Attorney, and U.S. Attorney General (per attorney request). (plp) (Entered: 06/20/2016)
10 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT re 6 Amended Complaint by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Nimocks, Austin) Modified on 6/20/2016 (plp). (Entered: 06/20/2016)
11 MOTION for Injunction filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Exhibit O, # 2 Exhibit(s) Exhibit P, # 3

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 9 of 19

07/07/2016
07/13/2016 07/13/2016 07/13/2016 07/13/2016 07/14/2016 07/14/2016 07/15/2016 07/15/2016
07/15/2016
07/17/2016 07/17/2016 07/17/2016 07/18/2016

Exhibit(s) Exhibit Q, # 4 Exhibit(s) Exhibit R, # 5 Exhibit(s) Exhibit S, # 6 Exhibit(s) Exhibit T, # 7 Exhibit(s) Exhibit U) (Nimocks, Austin) (Entered: 07/06/2016)
12 ORDER re: 11 MOTION for Injunction . Having considered the parties' agreed request for expedited consideration, it is ORDERED that Defendants' Response, if any, be filed on or before July 27, 2016. It is further ORDERED that Plaintiffs' Reply, if any, be filed on or before August 3, 2016. The Court will schedule a hearing addressing Plaintiffs' Application for Preliminary Injunction at a later date. (Ordered by Judge Reed C O'Connor on 7/7/2016) (trt) (Entered: 07/07/2016)
13 MOTION Leave to Proceed Without Local Counsel filed by Eagle Forum Education & Legal Defense Fund. Party Amicus EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND added.Attorney Karen Bryant Tripp added to party Eagle Forum Education & Legal Defense Fund(pty:am) (Tripp, Karen) (Entered: 07/13/2016)
14 Third Party MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for a Preliminary Injunction filed by Eagle Forum Education & Legal Defense Fund with Brief/Memorandum in Support. (Tripp, Karen) (Entered: 07/13/2016)
15 Brief/Memorandum in Support filed by Eagle Forum Education & Legal Defense Fund re 14 Third Party MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for a Preliminary Injunction (Tripp, Karen) (Entered: 07/13/2016)
16 Brief/Memorandum in Support filed by Eagle Forum Education & Legal Defense Fund re 15 Brief/Memorandum in Support of Motion, 14 Third Party MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for a Preliminary Injunction Amicus Curiae Brief (Tripp, Karen) (Entered: 07/13/2016)
17 ORDER granting 13 Motion to proceed without local counsel. (Ordered by Judge Reed C O'Connor on 7/15/2016) (trt) . (Entered: 07/15/2016)
18 ORDER granting 14 Motion for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for a Preliminary Injunction. The requesting party must file the document with the clerk by 7/18/2016. (Ordered by Judge Reed C O'Connor on 7/14/2016) (trt) (Entered: 07/15/2016)
19 Brief/Memorandum in Support filed by Eagle Forum Education & Legal Defense Fund re 18 Order on Motion for Leave to File, Amicus Curiae Brief (Tripp, Karen) (Entered: 07/15/2016)
20 NOTICE of Attorney Appearance by Benjamin Leon Berwick on behalf of Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang. (Filer will update contact info in ECF.) (Berwick, Benjamin) (Entered: 07/15/2016)
21 Unopposed Motion for Extension of Time to File Answer filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang (Attachments: # 1 Proposed Order) (Berwick, Benjamin) (Entered: 07/15/2016)
22 MOTION for Leave to File Amicus Brief filed by Governor C. L. "Butch" Otter (Attachments: # 1 Proposed Amicus Brief) Attorney Cally Younger added to party Governor C. L. "Butch" Otter(pty:am) (trt) (Entered: 07/18/2016)
23 Brief in Support filed by Governor C. L. "Butch" Otter re 22 MOTION for Leave to File Amicus Brief (trt) (Entered: 07/18/2016)
24 MOTION for Leave to Proceed Without Local Counsel filed by Governor C. L. "Butch" Otter (trt) (Entered: 07/18/2016)
25 ORDER: Defendants' unopposed Motion for Extension of Time to File Answer (ECF 21 ) is GRANTED. It is further ORDERED that Defendants may file an answer or otherwise respond to Plaintiffs' Amended Complaint on or before the date that is 30 days after the Court rules on Plaintiffs' Application for Preliminary Injunction.

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 10 of 19

07/18/2016 07/18/2016 07/22/2016 07/26/2016
07/27/2016 07/27/2016 07/27/2016
07/27/2016 07/27/2016 07/27/2016
07/27/2016 07/27/2016 07/27/2016

(Ordered by Judge Reed C O'Connor on 7/18/2016) (baa) (Entered: 07/18/2016)
26 ORDER granting 24 Motion for Leave to Proceed Without Local Counsel. (Ordered by Judge Reed C O'Connor on 7/18/2016) (ewd) (Entered: 07/18/2016)
27 ORDER granting 22 Motion for Leave to File Amicus Curiae Brief in Support of Plaintiff's Motion for a Preliminary Injunction and Brief in Support. It is ORDERED that Governor Otter may file his Amicus Brief on or before July 22, 2016. (Ordered by Judge Reed C O'Connor on 7/18/2016) (ewd) (Entered: 07/18/2016)
28 Brief/Memorandum in Support filed by Governor C. L. "Butch" Otter re 27 Order on Motion for Leave to File, Amicus Curiae Brief (Younger, Cally) (Entered: 07/22/2016)
29 Unopposed MOTION for Leave to File Brief in Excess of Page Limit filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang (Attachments: # 1 Proposed Order) (Berwick, Benjamin) (Entered: 07/26/2016)
30 ORDER: Unopposed Motion for Leave to File Brief in Excess of Page Limit (ECF No. 29 ) is GRANTED. It is ORDERED that Defendants may file a brief in response to Plaintiffs' Application for Preliminary Injunction no longer than 30 pages in length. (Ordered by Judge Reed C O'Connor on 7/27/2016) (baa) (Entered: 07/27/2016)
31 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−7756843) filed by State of Washington. Party State of Washington added.Attorney Alan D Copsey added to party State of Washington(pty:am) (Copsey, Alan) (Entered: 07/27/2016)
32 STATES' MOTION FOR LEAVE TO PROCEED WITHOUT LOCAL COUNSEL re 31 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−7756843) filed by State of Washington (Attachments: # 1 Proposed Order) (Copsey, Alan) Modified title on 7/28/2016 (trt). (Entered: 07/27/2016)
33 MOTION for Leave to File Amicus BriefIn Opposition To Plaintiffs' Application For Preliminary Injuction filed by State of Washington (Attachments: # 1 Proposed Order) (Copsey, Alan) (Entered: 07/27/2016)
34 Brief/Memorandum in Support filed by State of Washington re 33 MOTION for Leave to File Amicus BriefIn Opposition To Plaintiffs' Application For Preliminary Injuction (Copsey, Alan) (Entered: 07/27/2016)
35 MOTION for Leave to File Without Local Counsel filed by Letitia James, Public Advocate for the City of New York (Attachments: # 1 Proposed Order). Party Letitia James, Public Advocate for the City of New York added.Attorney Molly Thomas−Jensen added to party Letitia James, Public Advocate for the City of New York(pty:am) (Thomas−Jensen, Molly) (Entered: 07/27/2016)
36 MOTION for Leave to File Brief of Amicus CuriaeIn Opposition To Plaintiffs' Application For Preliminary Injuction filed by Letitia James, Public Advocate for the City of New York (Attachments: # 1 Exhibit(s) Brief of Amicus Curiae, # 2 Proposed Order) (Thomas−Jensen, Molly) (Entered: 07/27/2016)
37 Brief/Memorandum in Support filed by Letitia James, Public Advocate for the City of New York re 36 MOTION for Leave to File Brief of Amicus CuriaeIn Opposition To Plaintiffs' Application For Preliminary Injuction (Thomas−Jensen, Molly) (Entered: 07/27/2016)
38 MOTION for Leave to File Brief Amici Curiae filed by American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, Transgender Law Center (Attachments: # 1 Exhibit(s) Proposed Amicus Brief, # 2 Proposed Order Proposed Order Granting Leave). Party American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, Transgender Law Center added.Attorney

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 11 of 19

07/27/2016
07/27/2016
07/28/2016 07/28/2016 07/28/2016
07/28/2016 07/28/2016 07/28/2016
07/28/2016
07/29/2016 08/03/2016

Kenneth D Upton, Jr added to party American Civil Liberties Union Foundation(pty:mov), Attorney Kenneth D Upton, Jr added to party American Civil Liberties Union of Texas(pty:mov), Attorney Kenneth D Upton, Jr added to party GLBTQ Legal Advocates & Defenders(pty:mov), Attorney Kenneth D Upton, Jr added to party Lambda Legal Defense and Education Fund, Inc.(pty:mov), Attorney Kenneth D Upton, Jr added to party National Center for Lesbian Rights(pty:mov), Attorney Kenneth D Upton, Jr added to party Transgender Law Center(pty:mov) (Upton, Kenneth) (Entered: 07/27/2016)
39 Brief/Memorandum in Support filed by American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, Transgender Law Center re 38 MOTION for Leave to File Brief Amici Curiae (Upton, Kenneth) (Entered: 07/27/2016)
40 RESPONSE filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang re: 11 MOTION for Injunction (Berwick, Benjamin) (Entered: 07/27/2016)
41 ORDER granting 32 Motion for Leave to Proceed Without Local Counsel. (Ordered by Judge Reed C O'Connor on 7/28/2016) (trt) (Entered: 07/28/2016)
42 ORDER granting 31 Application for Admission Pro Hac Vice of Alan D. Copsey. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Reed C O'Connor on 7/28/2016) (baa) (Entered: 07/28/2016)
43 ORDER: The Court finds that the unopposed Motion for Leave to File Brief as Amici Curiae and Brief in Support (ECF 36 ) is well−taken, and should be and ishereby GRANTED. It is ORDERED that the Court will accept the Motion for Leave to File Brief as Amici Curiae and Brief in Support as docketed on July 27, 2016 (ECF No. 36−37). (Ordered by Judge Reed C O'Connor on 7/28/2016) (baa) (Entered: 07/28/2016)
44 ORDER granting 38 Motion for Leave to File Brief as Amici Curiae. It is ORDERED that the Court will accept the Movants Amicus Brief as docketed on July 27, 2016 (ECF No. 38−1). (Ordered by Judge Reed C O'Connor on 7/28/2016) (trt) (Entered: 07/28/2016)
45 ORDER granting 35 Motion for Leave to Proceed Without Local Counsel. (Ordered by Judge Reed C O'Connor on 7/28/2016) (trt) (Entered: 07/28/2016)
46 ORDER granting 33 States' Motion for Leave to File Amicus Curiae Brief in Opposition to Plaintiffs' Application for Preliminary Injunction. It is ORDERED that the Court will accept the Movants' Amicus Brief as docketed on July 27, 2016 (ECF No. 34). (Ordered by Judge Reed C O'Connor on 7/28/2016) (trt) (Entered: 07/28/2016)
47 NOTICE of Attorney Appearance by Paul David Castillo on behalf of American Civil Liberties Union Foundation, American Civil Liberties Union of Texas, GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, Transgender Law Center. (Filer confirms contact info in ECF is current.) (Castillo, Paul) (Entered: 07/28/2016)
48 Correspondence received via the court's online email system regarding 7:16−cv−00054−O State of Texas, et al. v. United States of America, et al. (ali) (Entered: 07/29/2016)
49 First MOTION for Leave to File To file reply brief in excess of page limit filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin (Attachments: # 1 Proposed Order Proposed Order) (Nimocks, Austin) (Entered: 08/03/2016)

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 12 of 19

08/03/2016 08/03/2016 08/03/2016 08/04/2016 08/08/2016 08/09/2016 08/12/2016 08/18/2016 08/19/2016
08/21/2016 08/24/2016
08/30/2016

50 ELECTRONIC ORDER granting 49 Motion for Leave to File. (Ordered by Judge Reed C O'Connor on 8/3/2016) (Judge Reed C O'Connor) (Entered: 08/03/2016)
51 NOTICE of Attorney Appearance by Austin R Nimocks for Michael C. Toth on behalf of Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Nimocks, Austin) (Entered: 08/03/2016)
52 REPLY filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 40 Response/Objection, (Attachments: # 1 Declaration(s) Declaration of Kara Belew) (Nimocks, Austin) (Entered: 08/03/2016)
53 NOTICE of Attorney Schedule filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang (Berwick, Benjamin) (Entered: 08/04/2016)
54 ORDER deferring ruling on 11 Motion for Injunction and setting hearing date (Ordered by Judge Reed C O'Connor on 8/8/2016) (Judge Reed C O'Connor) (Entered: 08/08/2016)
Hearing/Deadline Modification: Deadlines/hearings set per 54 Order deferring ruling on Motion for Injunction and setting hearing date. Motion Hearing re 11 MOTION for Injunction set for 8/12/2016 10:30 AM in US Courthouse, Courtroom 2nd Floor, 501 W. 10th St. Fort Worth, TX 76102−3673 before Judge Reed C O'Connor. (plp) (Entered: 08/09/2016)
56 ELECTRONIC Minute Entry for proceedings held before Judge Reed C O'Connor: Evidentiary Hearing held on 8/12/2016. Order to follow. Attorney Appearances: Plaintiff − Austin Nimoks; Defense − Benjamin Berwick. (Court Reporter: Denver Roden) (No exhibits) Time in Court − 2:10. (chmb) (Entered: 08/18/2016)
55 Correspondence received via the court's online email system regarding 7:16−cv−00054−O State of Texas, et al. v. United States of America, et al. (ali) (Entered: 08/18/2016)
57 First MOTION for Leave to File Additional Exhibit filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Nimocks, Austin) (Entered: 08/19/2016)
58 ORDER granting 11 Motion for Injunction (Ordered by Judge Reed C O'Connor on 8/21/2016) (Judge Reed C O'Connor) (Entered: 08/21/2016)
59 Notice of Filing of Official Electronic Transcript of Hearing on Motion for Injunction Proceedings held on 08−12−2016 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, RMR, Telephone number 214−753−2298. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (82 pages) Redaction Request due 9/14/2016. Redacted Transcript Deadline set for 9/26/2016. Release of Transcript Restriction set for 11/22/2016. (dbr) (Entered: 08/24/2016)
60 ORDER REQUIRING SCHEDULING CONFERENCE AND REPORT FOR CONTENTS OF SCHEDULING ORDER: Joint Report due by 9/26/2016. (Ordered

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 13 of 19

08/30/2016 08/31/2016 09/01/2016
09/09/2016
09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/13/2016

by Judge Reed C O'Connor on 8/30/2016) (baa) (Entered: 08/30/2016)
61 NOTICE of Pending Litigation filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang (Berwick, Benjamin) (Entered: 08/30/2016)
62 ORDER: The Court finds that expedited briefing is necessary to resolve Defendants' Notice. See L.R. 7.1. Accordingly, it is ORDERED that Plaintiffs must file a Response to Defendants' Notice on or before September 9, 2016. Should Defendants wish to file a Reply, they may do so on or before September 14, 2016. (Ordered by Judge Reed C O'Connor on 8/31/2016) (baa) (Entered: 08/31/2016)
63 Notice of Filing of Official Electronic Transcript of Hearing on Motion for Injunction CORRECTED Proceedings held on 08−12−2016 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, RMR, Telephone number 214−753−2298. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (81 pages) Redaction Request due 9/22/2016. Redacted Transcript Deadline set for 10/3/2016. Release of Transcript Restriction set for 11/30/2016. (dbr) (Entered: 09/01/2016)
64 NOTICE of PENDING LITIGATION re: 61 Notice (Other), 62 Order Setting Deadline/Hearing, 58 Order on Motion for Injunction filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin (Attachments: # 1 Exhibit(s) Exhibit 1, # 2 Exhibit(s) Exhibit 2, # 3 Exhibit(s) Exhibit 3, # 4 Exhibit(s) Exhibit 4, # 5 Exhibit(s) Exhibit 5, # 6 Exhibit(s) Exhibit 6) (Nimocks, Austin) (Entered: 09/09/2016)
65 MOTION for Clarification of the Court's Preliminary Injunction Order and Unopposed Request for Expedited Consideration filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang with Brief/Memorandum in Support. (Berwick, Benjamin) (Entered: 09/12/2016)
66 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−7858288) filed by Rachel Jona Tudor (Attachments: # 1 Exhibit(s) Ezra Young Certificate of Good Standing, # 2 Proposed Order Proposed Order). Party Dr. Rachel Tudor added. (Young, Ezra) (Entered: 09/12/2016)
67 MOTION to Intervene and Join Claim filed by Rachel Jona Tudor with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Exhibit 1, Complaint in Intervention, # 2 Proposed Order Proposed Order) (Young, Ezra) (Entered: 09/12/2016)
68 MOTION re 66 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−7858288) filed by Rachel Jona Tudor with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order Proposed Order) (Young, Ezra) (Entered: 09/12/2016)
69 Agreed STIPULATION of WAIVER of BOND by State of Texas. (Nimocks, Austin) (Entered: 09/12/2016)
70 ORDER: Having considered the parties' agreed request for expedited consideration, it is ORDERED that Plaintiffs' Response, if any, be filed on or before September 19, 2016. It is further ORDERED that Defendants' Reply, if any, be filed on or before September 23, 2016. (Ordered by Judge Reed C O'Connor on 9/13/2016) (trt)

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 14 of 19

09/14/2016 09/14/2016 09/19/2016
09/23/2016 09/26/2016
09/26/2016 09/27/2016 09/28/2016 09/30/2016 09/30/2016

(Entered: 09/13/2016)
71 Unopposed Motion for Extension of Time to File Answer filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang (Attachments: # 1 Proposed Order) (Berwick, Benjamin) (Entered: 09/14/2016)
72 REPLY filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang re: 61 Notice (Other), 64 Notice (Other),, (Berwick, Benjamin) (Entered: 09/14/2016)
73 RESPONSE filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 65 MOTION for Clarification of the Court's Preliminary Injunction Order and Unopposed Request for Expedited Consideration (Nimocks, Austin) (Entered: 09/19/2016)
74 REPLY filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang re: 65 MOTION for Clarification of the Court's Preliminary Injunction Order and Unopposed Request for Expedited Consideration (Berwick, Benjamin) (Entered: 09/23/2016)
75 Joint Submission on Discovery Matters (Joint Report of Parties) by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. Related document: 60 Status Report Order. (Nimocks, Austin) (Entered: 09/26/2016)
76 ORDER setting 65 Motion for Hearing. Hearing set for 9/30/2016 09:30 AM in US Courthouse, Courtroom 222, 1000 Lamar Street, Wichita Falls, TX 76301−3431 before Judge Reed C O'Connor. (Ordered by Judge Reed C O'Connor on 9/26/2016) (Judge Reed C O'Connor) (Entered: 09/26/2016)
77 NOTICE of Other Litigation filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang (Berwick, Benjamin) (Entered: 09/27/2016)
78 NOTICE of Supplemental Authority filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang (Attachments: # 1 Exhibit(s)) (Berwick, Benjamin) (Entered: 09/28/2016)
79 ELECTRONIC ORDER granting 66 Application for Admission Pro Hac Vice of Ezra Young. If not already done, Applicant must register as an ECF User within 14 days (LR 5.1(f)).(Ordered by Judge Reed C O'Connor on 9/30/2016)(chmb)(cds) (Entered: 09/30/2016)
80 ELECTRONIC Minute Entry for proceedings held before Judge Reed C O'Connor: Motion Hearing held on 9/30/2016 65 MOTION for Clarification of the Court's Preliminary Injunction Order and Unopposed Request for Expedited Consideration. Attorney Appearances: Plaintiff − Austin Nimocks; Defense − Benjamin Barwick. (Court Reporter: Denver Roden) (No exhibits) Time in Court − 1:17. (chmb) (Entered: 09/30/2016)

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 15 of 19

10/03/2016 10/03/2016 10/14/2016 10/17/2016 10/17/2016 10/18/2016 10/19/2016 10/19/2016 10/20/2016
10/24/2016

81 RESPONSE filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang re: 67 MOTION to Intervene and Join Claim (Berwick, Benjamin) (Entered: 10/03/2016)
82 RESPONSE filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 67 MOTION to Intervene and Join Claim (Nimocks, Austin) (Entered: 10/03/2016)
83 NOTICE of Defendants' Intent to File Notice of Appeal filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang (Berwick, Benjamin) (Entered: 10/14/2016)
84 REPLY filed by Rachel Jona Tudor re: 67 MOTION to Intervene and Join Claim (Young, Ezra) (Entered: 10/17/2016)
85 ***DISREGARD: See 87 for correct document*** REPLY filed by Rachel Jona Tudor re: 67 MOTION to Intervene and Join Claim (Attachments: # 1 Exhibit(s) Exhibit 1, # 2 Exhibit(s) Exhibit 2, # 3 Exhibit(s) Exhibit 3) (Young, Ezra) Modified on 10/19/2016 (plp). (Entered: 10/17/2016)
86 ORDER granting in part and denying in part 65 Motion. See order for details. (Ordered by Judge Reed C O'Connor on 10/18/2016) (Judge Reed C O'Connor) (Entered: 10/18/2016)
Hearing/Deadline Modification: Deadlines set per 86 Order on Motion for Miscellaneous Relief. Plaintiffs must respond on or before October 24, 2016, and Defendants must reply on or before October 28, 2016. (skg) (Entered: 10/19/2016)
87 REPLY filed by Rachel Jona Tudor re: 67 MOTION to Intervene and Join Claim (Attachments: # 1 Exhibit(s) Exhibit 1, # 2 Exhibit(s) Exhibit 2, # 3 Exhibit(s) Exhibit 3) (Young, Ezra) (Entered: 10/19/2016)
88 NOTICE OF INTERLOCUTORY APPEAL as to 86 Order on Motion for Miscellaneous Relief, 58 Order on Motion for Injunction to the Fifth Circuit by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Berwick, Benjamin) (Entered: 10/20/2016)
89 Notice of Filing of Official Electronic Transcript of Hearing Proceedings held on 09−30−2016 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, RMR, Telephone number 214−753−2298. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (48 pages) Redaction Request due 11/14/2016. Redacted Transcript Deadline set for 11/25/2016. Release of Transcript Restriction set for 1/23/2017. (dbr) (Entered: 10/24/2016)

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 16 of 19

10/24/2016 10/27/2016 10/28/2016 10/31/2016 11/03/2016
11/07/2016
11/09/2016 11/14/2016 11/15/2016

90 Brief/Memorandum in Support filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re 86 Order on Motion for Miscellaneous Relief (Nimocks, Austin) (Entered: 10/24/2016)
91 MOTION Request for Ruling on Motion to Intervene re 67 MOTION to Intervene and Join Claim filed by Rachel Jona Tudor with Brief/Memorandum in Support. (Young, Ezra) (Entered: 10/27/2016)
92 Brief/Memorandum in Support filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang re 86 Order on Motion for Miscellaneous Relief (Berwick, Benjamin) (Entered: 10/28/2016)
93 USCA Case Number 16−11534 in USCA5 for 88 Notice of Appeal filed by United States Department of Justice, Loretta E Lynch, United States Department of Labor, United States of America, John B. King, Jenny R Yang, Vanita Gupta, David Michaels, Thomas E. Perez, United States Equal Employment Opportunity Commission, United States Department of Education. (trt). (Entered: 10/31/2016)
94 NOTICE OF INTERLOCUTORY APPEAL as to 86 Order on Motion for Miscellaneous Relief, 58 Order on Motion for Injunction to the Fifth Circuit by Rachel Jona Tudor. Filing fee $505, receipt number 0539−7980923. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non−ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Young, Ezra) (Entered: 11/03/2016)
95 MOTION to Stay re 86 Order on Motion for Miscellaneous Relief, 58 Order on Motion for Injunction and Unopposed Request for Expedited Consideration filed by Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang with Brief/Memorandum in Support. (Attachments: # 1 Declaration(s)) (Berwick, Benjamin) (Entered: 11/07/2016)
96 ORDER: It is hereby ORDERED that Plaintiffs file a response to Defendants' Motion for Partial Stay of the Court's Preliminary Injunction Order 95 by November 15, 2016. (Ordered by Judge Reed C O'Connor on 11/9/2016) (skg) (Entered: 11/09/2016)
USCA Case Number 16−11534 in USCA5 for 88 Notice of Appeal, filed by United States Department of Justice, United States Department of Labor, United States of America, John B. King, Jenny R Yang, Loretta Lynch, Vanita Gupta, David Michaels, Thomas E. Perez, United States Equal Employment Opportunity Commission, United States Department of Education, 94 Notice of Appeal, filed by Rachel Jona Tudor. (skg) (Entered: 11/14/2016)
97 Notice of Filing of Official Electronic Transcript of Hearing Corrected Proceedings held on 09−30−2016 before Judge Reed C. O'Connor. Court Reporter/Transcriber Denver B. Roden, RMR, Telephone number 214−753−2298. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. If redaction request filed, this transcript will not be accessible via PACER; see redacted transcript. The clerk will mail a copy of this notice to parties not electronically noticed. (48 pages) Redaction Request due 12/6/2016. Redacted Transcript Deadline set for 12/16/2016. Release of Transcript Restriction set for 2/13/2017. (dbr) (Entered: 11/15/2016)

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 17 of 19

11/15/2016
11/15/2016
11/20/2016 11/22/2016
12/28/2016
12/29/2016 12/30/2016 01/09/2017 01/09/2017 01/09/2017 01/09/2017 01/09/2017 01/09/2017 01/09/2017

98 Transcript Order Form: re 88 Notice of Appeal,,,,, transcript requested by Jenny R Yang, United States Department of Justice, Loretta Lynch, John B. King, United States of America, United States Equal Employment Opportunity Commission, David Michaels, United States Department of Labor, Thomas E. Perez, United States Department of Education, Vanita Gupta for Preliminary Injunction Hearing held 8/12/16, Motion for Clarification Hearing held 9/30/16 (Court Reporter: Denver Roden.) Payment method: US Government Funds (Berwick, Benjamin) (Entered: 11/15/2016)
99 RESPONSE filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 95 MOTION to Stay re 86 Order on Motion for Miscellaneous Relief, 58 Order on Motion for Injunction and Unopposed Request for Expedited Consideration (Nimocks, Austin) (Entered: 11/15/2016)
100 ORDER denying 95 Motion to Stay (Ordered by Judge Reed C O'Connor on 11/20/2016) (Judge Reed C O'Connor) (Entered: 11/20/2016)
Record on Appeal for USCA5 16−11534 (related to 88 , 94 appeal): Record consisting of: 1 ECF electronic record on appeal (eROA) is certified, 2 Volume(s) electronic transcript. PLEASE NOTE THE FOLLOWING: Licensed attorneys must have filed an appearance in the USCA5 case and be registered for electronic filing in the USCA5 to access the paginated eROA in the USCA5 ECF system. (Take these steps immediately if you have not already done so, since the USCA5 briefing deadline has now been set. Once you have filed the notice of appearance and/or USCA5 ECF registration, it may take up to 3 business days for the circuit to notify the district clerk that we may grant you access to the eROA in the USCA5 ECF system.) To access the paginated record, log in to the USCA5 ECF system, and under the Utilities menu, select Electronic Record on Appeal. Pro se litigants may request a copy of the record by contacting the appeals deputy in advance to arrange delivery. (skg) (Entered: 11/22/2016)
APPEARANCE FORM FILED by Attorney(s) Thais−Lyn Trayer for party(s) Appellant USA Appellant Vanita Gupta Appellant Thomas E. Perez Appellant DOJ Appellant EEOC Appellant David Michaels Appellant LABR Appellant Loretta E. Lynch Appellant Jenny R. Yang Appellant John B. King Appellant EDUC, in case 16−11534. Access to the EROA granted. (skg) (Entered: 12/28/2016)
101 MOTION to Intervene filed by Rhonda Fleming, Charlsa Suzanne Little, Jeanette Driever. (skg) (Entered: 12/29/2016)
102 MOTION for Preliminary Injunctive Relief filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 12/30/2016)
103 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Rhonda Fleming. (skg) (Entered: 01/09/2017)
104 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Brenda Rhames. (skg) (Entered: 01/09/2017)
105 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Jessica Summers. (skg) (Entered: 01/09/2017)
106 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Linda Highfield. (skg) (Entered: 01/09/2017)
107 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Natasha Harper. (skg) (Entered: 01/09/2017)
108 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Jeanette Driever. (skg) (Entered: 01/09/2017)
109 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Yolanda Nowlin. (skg) (Entered: 01/09/2017)

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01/09/2017 01/11/2017 01/12/2017 01/16/2017
01/17/2017
01/17/2017 01/17/2017 01/18/2017
01/19/2017
01/25/2017 01/26/2017 01/26/2017 01/26/2017 01/26/2017 01/27/2017 01/27/2017 02/01/2017

110 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Charlsa Suzanne Little. (skg) (Entered: 01/09/2017)
APPEARANCE FORM FILED by Attorney Gene Micah Wissinger for Amicus Curiae Oklahomans for Equality in 16−11534. EROA access granted. (skg) (Entered: 01/11/2017)
111 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Robin Parezanin. (skg) (Entered: 01/12/2017)
112 RESPONSE filed by Arizona Department of Education, Governor C. L. "Butch" Otter, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 101 MOTION to Intervene (Nimocks, Austin) (Entered: 01/16/2017)
113 RESPONSE filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin re: 102 MOTION for Injunction (Nimocks, Austin) (Entered: 01/17/2017)
114 "Addendum to the Motion for Preliminary Injunctive Relief" 102 filed by Rhonda Fleming. (skg) (Entered: 01/17/2017)
115 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Levon Edmonds. (skg) (Entered: 01/17/2017)
116 NOTICE of Regarding Service of ECF No. 112 & No. 113 filed by Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin (Nimocks, Austin) (Entered: 01/18/2017)
117 RESPONSE AND OBJECTION filed by Vanita Gupta, John B. King, Loretta Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R Yang re: 101 MOTION to Intervene (Berwick, Benjamin) (Entered: 01/19/2017)
118 "Plaintiff−Intervenors' Sur−reply to Plaintiff−States Response" 112 filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (Attachments: # 1 Exhibit(s)) (skg) (Entered: 01/25/2017)
119 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Amy Alley. (skg) (Entered: 01/26/2017)
120 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Susan Peters. (skg) (Entered: 01/26/2017)
121 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Donna Roberts. (skg) (Entered: 01/26/2017)
122 Declaration Pursuant to U.S.C. 1746 in Support of Motion to Intervene 101 filed by Julie Tina Hatcher. (skg) (Entered: 01/26/2017)
123 "Plaintiff−Intervenors' Sur−Reply to Defendant's Opposition to Motion to Intervene" 117 filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (skg) (Entered: 01/27/2017)
124 NOTICE of "Complaint" filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (skg) (Entered: 01/27/2017)
125 "Plaintiff−Intervenors' Sur−Reply to Plaintiff−States' Response to Motion for Preliminary Injunction" and "Motion for Live Hearing on the Pleadings" filed by Jeanette Driever, Rhonda Fleming, Charlsa Suzanne Little. (skg) (Entered:

Case: 7:16-cv-54 As of: 04/10/2017 07:42 PM CDT 19 of 19

02/03/2017
02/03/2017 02/06/2017 03/03/2017 03/03/2017
03/03/2017

02/01/2017)
126 Order: It is ORDERED that the Clerk of the Court open a new civil action entitled "Rhonda Fleming, et al. v. John Doe" and copy the following to the docket of the new civil action: (1) ECF Nos. 101−125; and (2) this Order. Putative Intervenors will be afforded an opportunity to amend or withdraw their complaint in the new civil action. Further, Putative Intervenors' Motion to Intervene 101 ; Motion for Preliminary Injunction 102 ; and Motion for Live Hearing 125 are hereby DENIED as moot in the present case. Having reviewed the pleadings and the applicable law, the Court finds that the motions must be SEVERED and removed to a new civil action. ***Clerk's Note: New civil case opened 7:17−CV−0009−O*** (Ordered by Judge Reed C. O'Connor on 2/3/2017) (skg) (Entered: 02/03/2017)
***Clerk's Notice of delivery: (see NEF for details) Docket No:126. Fri Feb 3 15:45:44 CST 2017 (crt) (Entered: 02/03/2017)
127 (Document Restricted) Correspondence (skg) (Entered: 02/06/2017)
128 NOTICE of Dismissal Without Prejudice (Under Fed. R. Civ. P. 41(a)(1)(A)(i)) filed by Arizona Department of Education, Harrold Independent School District (TX), Heber−Overgaard Unified School District (AZ), Paul LePage, State of Alabama, State of Georgia, State of Kentucky, State of Louisiana, State of Mississippi, State of Oklahoma, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin (Nimocks, Austin) (Entered: 03/03/2017)
129 JUDGMENT/MANDATE of USCA 16−11534 as to 88 Notice of Appeal filed by United States Department of Justice, United States Department of Labor, United States of America, John B. King, Jenny R Yang, Loretta Lynch, Vanita Gupta, David Michaels, Thomas E. Perez, United States Equal Employment Opportunity Commission, United States Department of Education, 94 Notice of Appeal filed by Rachel Jona Tudor. Under FED R. APP. P. 42(b), the appeal is dismissed as of March 03, 2017, pursuant to appellant's motion. Issued as Mandate: 3/3/2017. (Attachments: # 1 USCA5 Cover letter.) (skg) (Entered: 03/03/2017)
Civil Case Terminated per 148 Notice of Dismissal Without Prejudice 128 . (skg). (Entered: 03/03/2017)

 
 U.S. Department of Justice Civil Rights Division

U.S. Department of Education Office for Civil Rights

Dear Colleague Letter on Transgender Students Notice of Language Assistance
If you have difficulty understanding English, you may, free of charge, request language assistance services for this Department information by calling 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-8778339), or email us at: Ed.Language.Assistance@ed.gov.

Aviso a personas con dominio limitado del idioma inglés: Si usted tiene alguna dificultad en entender el idioma inglés, puede, sin costo alguno, solicitar asistencia lingüística con respecto a esta información llamando al 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o envíe un mensaje de correo electrónico a: Ed.Language.Assistance@ed.gov.

給英語能力有限人士的通知: 如果您不懂英語， 或者使用英语有困难，您可以要求獲得向大眾提 供的語言協助服務，幫助您理解教育部資訊。這些語言協助服務均可免費提供。如果您需要有關 口譯或筆譯服務的詳細資訊，請致電 1-800-USA-LEARN (1-800-872-5327) (聽語障人士專線：1-800877-8339),或電郵: Ed.Language.Assistance@ed.gov。

Thông báo dành cho những người có khả năng Anh ngữ hạn chế: Nếu quý vị gặp khó khăn trong việc hiểu Anh ngữ thì quý vị có thể yêu cầu các dịch vụ hỗ trợ ngôn ngữ cho các tin tức của Bộ dành cho công chúng. Các dịch vụ hỗ trợ ngôn ngữ này đều miễn phí. Nếu quý vị muốn biết thêm chi tiết về các dịch vụ phiên dịch hay thông dịch, xin vui lòng gọi số 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-8778339), hoặc email: Ed.Language.Assistance@ed.gov.

영어 미숙자를 위한 공고: 영어를 이해하는 데 어려움이 있으신 경우, 교육부 정보 센터에 일반인 대상 언어 지원 서비스를 요청하실 수 있습니다. 이러한 언어 지원 서비스는 무료로 제공됩니다. 통역이나 번역 서비스에 대해 자세한 정보가 필요하신 경우, 전화번호 1-800-USA-LEARN (1-800872-5327) 또는 청각 장애인용 전화번호 1-800-877-8339 또는 이메일주소 Ed.Language.Assistance@ed.gov 으로 연락하시기 바랍니다.

Paunawa sa mga Taong Limitado ang Kaalaman sa English: Kung nahihirapan kayong makaintindi ng English, maaari kayong humingi ng tulong ukol dito sa inpormasyon ng Kagawaran mula sa nagbibigay ng serbisyo na pagtulong kaugnay ng wika. Ang serbisyo na pagtulong kaugnay ng wika ay libre. Kung kailangan ninyo ng dagdag na impormasyon tungkol sa mga serbisyo kaugnay ng pagpapaliwanag o pagsasalin, mangyari lamang tumawag sa 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o mag-email sa: Ed.Language.Assistance@ed.gov.
Уведомление для лиц с ограниченным знанием английского языка: Если вы испытываете трудности в понимании английского языка, вы можете попросить, чтобы вам предоставили перевод информации, которую Министерство Образования доводит до всеобщего сведения. Этот перевод предоставляется бесплатно. Если вы хотите получить более подробную информацию об услугах устного и письменного перевода, звоните по телефону 1-800-USA-LEARN (1-800-872-5327) (служба для слабослышащих: 1-800-877-8339), или отправьте сообщение по адресу: Ed.Language.Assistance@ed.gov.

U.S. Department of Justice Civil Rights Division

May 13, 2016

U.S. Department of Education Office for Civil Rights

Dear Colleague:

Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.1 This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. This letter summarizes a school’s Title IX obligations regarding transgender students and explains how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) evaluate a school’s compliance with these obligations.
ED and DOJ (the Departments) have determined that this letter is significant guidance.2 This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations. If you have questions or are interested in commenting on this guidance, please contact ED at ocr@ed.gov or 800-421-3481 (TDD 800-877-8339); or DOJ at education@usdoj.gov or 877-292-3804 (TTY: 800-514-0383).

Accompanying this letter is a separate document from ED’s Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students. The examples in that document are taken from policies that school districts, state education agencies, and high school athletics associations around the country have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment. Schools are encouraged to consult that document for practical ways to meet Title IX’s requirements.3

Terminology

 Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.

 Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth.

 Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.

Dear Colleague Letter: Transgender Students

Page 2 of 8

 Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.
Compliance with Title IX
As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.4 The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.5
The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.6 Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence),7 requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.8
1. Safe and Nondiscriminatory Environment
Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex, and the Departments enforce Title IX accordingly.9 If sex-based harassment creates a hostile environment, the school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX. For a more detailed discussion of Title IX

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requirements related to sex-based harassment, see guidance documents from ED’s Office for Civil Rights (OCR) that are specific to this topic.10
2. Identification Documents, Names, and Pronouns
Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.11
3. Sex-Segregated Activities and Facilities
Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.12 When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.13
 Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.14 A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.15
 Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport.16 A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.17 Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.18
 Single-Sex Classes. Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances.19 When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity.
 Single-Sex Schools. Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges.20 Those schools are therefore permitted under Title IX to set their own

Dear Colleague Letter: Transgender Students

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sex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses.
 Social Fraternities and Sororities. Title IX does not apply to the membership practices of social fraternities and sororities.21 Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.
 Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex.22 But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for singleoccupancy accommodations if it so chooses.23
 Other Sex-Specific Activities and Rules. Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).24
4. Privacy and Education Records
Protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity. The Departments may find a Title IX violation when a school limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.25 Nonconsensual disclosure of personally identifiable information (PII), such as a student’s birth name or sex assigned at birth, could be harmful to or invade the privacy of transgender students and may also violate the Family Educational Rights and Privacy Act (FERPA).26 A school may maintain records with this information, but such records should be kept confidential.
 Disclosure of Personally Identifiable Information from Education Records. FERPA generally prevents the nonconsensual disclosure of PII from a student’s education records; one exception is that records may be disclosed to individual school personnel who have been determined to have a legitimate educational interest in the information.27 Even when a student has disclosed the student’s transgender status to some members of the school community, schools may not rely on this FERPA exception to disclose PII from education records to other school personnel who do not have a legitimate educational interest in the information. Inappropriately disclosing (or requiring students or their parents to disclose) PII from education records to the school community may

Dear Colleague Letter: Transgender Students

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violate FERPA and interfere with transgender students’ right under Title IX to be treated consistent with their gender identity.

 Disclosure of Directory Information. Under FERPA’s implementing regulations, a school may
disclose appropriately designated directory information from a student’s education record if disclosure would not generally be considered harmful or an invasion of privacy.28 Directory information may include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance.29 School officials may not designate students’ sex,
including transgender status, as directory information because doing so could be harmful or an invasion of privacy.30 A school also must allow eligible students (i.e., students who have reached
18 years of age or are attending a postsecondary institution) or parents, as appropriate, a
reasonable amount of time to request that the school not disclose a student’s directory information.31

 Amendment or Correction of Education Records. A school may receive requests to correct a student’s education records to make them consistent with the student’s gender identity. Updating a transgender student’s education records to reflect the student’s gender identity and new name will help protect privacy and ensure personnel consistently use appropriate names and pronouns.

o Under FERPA, a school must consider the request of an eligible student or parent to amend information in the student’s education records that is inaccurate, misleading, or in violation of the student’s privacy rights.32 If the school does not amend the record, it must inform the requestor of its decision and of the right to a hearing. If, after the hearing, the school does not amend the record, it must inform the requestor of the right to insert a statement in the record with the requestor’s comments on the contested information, a statement that the requestor disagrees with the hearing decision, or both. That statement must be disclosed whenever the record to which the statement relates is disclosed.33
o Under Title IX, a school must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records.34 If a student or parent complains about the school’s handling of such a request, the school must promptly and equitably resolve the complaint under the school’s Title IX grievance procedures.35 * * *
We appreciate the work that many schools, state agencies, and other organizations have undertaken to make educational programs and activities welcoming, safe, and inclusive for all students.

Sincerely, /s/
Catherine E. Lhamon Assistant Secretary for Civil Rights U.S. Department of Education

/s/
Vanita Gupta Principal Deputy Assistant Attorney General for Civil Rights U.S. Department of Justice

Dear Colleague Letter: Transgender Students

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1 20 U.S.C. §§ 1681–1688; 34 C.F.R. Pt. 106; 28 C.F.R. Pt. 54. In this letter, the term schools refers to recipients of Federal financial assistance at all educational levels, including school districts, colleges, and universities. An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a). 2 Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf. 3 ED, Examples of Policies and Emerging Practices for Supporting Transgender Students (May 13, 2016), www.ed.gov/oese/oshs/emergingpractices.pdf. OCR also posts many of its resolution agreements in cases involving transgender students online at www.ed.gov/ocr/lgbt.html. While these agreements address factspecific cases, and therefore do not state general policy, they identify examples of ways OCR and recipients have resolved some issues addressed in this guidance. 4 34 C.F.R. §§ 106.4, 106.31(a). For simplicity, this letter cites only to ED’s Title IX regulations. DOJ has also promulgated Title IX regulations. See 28 C.F.R. Pt. 54. For purposes of how the Title IX regulations at issue in this guidance apply to transgender individuals, DOJ interprets its regulations similarly to ED. State and local rules cannot limit or override the requirements of Federal laws. See 34 C.F.R. § 106.6(b). 5 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79 (1998); G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 WL 1567467, at *8 (4th Cir. Apr. 19, 2016); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 572-75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000); Schroer v. Billington, 577 F. Supp. 2d 293, 306-08 (D.D.C. 2008); Macy v. Dep’t of Justice, Appeal No. 012012082 (U.S. Equal Emp’t Opportunity Comm’n Apr. 20, 2012). See also U.S. Dep’t of Labor (USDOL), Training and Employment Guidance Letter No. 37-14, Update on Complying with Nondiscrimination Requirements: Discrimination Based on Gender Identity, Gender Expression and Sex Stereotyping are Prohibited Forms of Sex Discrimination in the Workforce Development System (2015), wdr.doleta.gov/directives/attach/TEGL/TEGL_3714.pdf; USDOL, Job Corps, Directive: Job Corps Program Instruction Notice No. 14-31, Ensuring Equal Access for Transgender Applicants and Students to the Job Corps Program (May 1, 2015), https://supportservices.jobcorps.gov/Program%20Instruction%20Notices/pi_14_31.pdf; DOJ, Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (2014), www.justice.gov/sites/default/files/opa/pressreleases/attachments/2014/12/18/title_vii_memo.pdf; USDOL, Office of Federal Contract Compliance Programs, Directive 2014-02, Gender Identity and Sex Discrimination (2014), www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html. 6 See Lusardi v. Dep’t of the Army, Appeal No. 0120133395 at 9 (U.S. Equal Emp’t Opportunity Comm’n Apr. 1, 2015) (“An agency may not condition access to facilities—or to other terms, conditions, or privileges of employment—on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”). 7 See G.G., 2016 WL 1567467, at *1 n.1 (noting that medical authorities “do not permit sex reassignment surgery for persons who are under the legal age of majority”). 8 34 C.F.R. § 106.31(b)(4); see G.G., 2016 WL 1567467, at *8 & n.10 (affirming that individuals have legitimate and important privacy interests and noting that these interests do not inherently conflict with nondiscrimination principles); Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (rejecting claim that allowing a transgender woman “merely [to be] present in the women’s faculty restroom” created a hostile environment); Glenn, 663 F.3d at 1321 (defendant’s proffered justification that “other women might object to [the plaintiff]’s restroom use” was “wholly irrelevant”). See also Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (recognizing that “mere negative attitudes, or fear . . . are not permissible bases for” government action).

Dear Colleague Letter: Transgender Students

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9 See, e.g., Resolution Agreement, In re Downey Unified Sch. Dist., CA, OCR Case No. 09-12-1095, (Oct. 8, 2014), www.ed.gov/documents/press-releases/downey-school-district-agreement.pdf (agreement to address harassment of transgender student, including allegations that peers continued to call her by her former name, shared pictures of her prior to her transition, and frequently asked questions about her anatomy and sexuality); Consent Decree, Doe v. Anoka-Hennepin Sch. Dist. No. 11, MN (D. Minn. Mar. 1, 2012), www.ed.gov/ocr/docs/investigations/05115901-d.pdf (consent decree to address sex-based harassment, including based on nonconformity with gender stereotypes); Resolution Agreement, In re Tehachapi Unified Sch. Dist., CA, OCR Case No. 09-11-1031 (June 30, 2011), www.ed.gov/ocr/docs/investigations/09111031-b.pdf (agreement to address sexual and gender-based harassment, including harassment based on nonconformity with gender stereotypes). See also Lusardi, Appeal No. 0120133395, at *15 (“Persistent failure to use the employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment”).
10 See, e.g., OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001), www.ed.gov/ocr/docs/shguide.pdf; OCR, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010), www.ed.gov/ocr/letters/colleague-201010.pdf; OCR, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), www.ed.gov/ocr/letters/colleague-201104.pdf; OCR, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf. 11 See, e.g., Resolution Agreement, In re Cent. Piedmont Cmty. Coll., NC, OCR Case No. 11-14-2265 (Aug. 13, 2015), www.ed.gov/ocr/docs/investigations/more/11142265-b.pdf (agreement to use a transgender student’s preferred name and gender and change the student’s official record to reflect a name change). 12 34 C.F.R. §§ 106.32, 106.33, 106.34, 106.41(b). 13 See 34 C.F.R. § 106.31.
14 34 C.F.R. § 106.33. 15 See, e.g., Resolution Agreement, In re Township High Sch. Dist. 211, IL, OCR Case No. 05-14-1055 (Dec. 2, 2015), www.ed.gov/ocr/docs/investigations/more/05141055-b.pdf (agreement to provide any student who requests additional privacy “access to a reasonable alternative, such as assignment of a student locker in near proximity to the office of a teacher or coach; use of another private area (such as a restroom stall) within the public area; use of a nearby private area (such as a single-use facility); or a separate schedule of use.”). 16 34 C.F.R. § 106.41(b). Nothing in Title IX prohibits schools from offering coeducational athletic opportunities. 17 34 C.F.R. § 106.6(b), (c). An interscholastic athletic association is subject to Title IX if (1) the association receives Federal financial assistance or (2) its members are recipients of Federal financial assistance and have ceded controlling authority over portions of their athletic program to the association. Where an athletic association is covered by Title IX, a school’s obligations regarding transgender athletes apply with equal force to the association. 18 The National Collegiate Athletic Association (NCAA), for example, reported that in developing its policy for participation by transgender students in college athletics, it consulted with medical experts, athletics officials, affected students, and a consensus report entitled On the Team: Equal Opportunity for Transgender Student Athletes (2010) by Dr. Pat Griffin & Helen J. Carroll (On the Team), https://www.ncaa.org/sites/default/files/NCLR_TransStudentAthlete%2B(2).pdf. See NCAA Office of Inclusion, NCAA Inclusion of Transgender Student-Athletes 2, 30-31 (2011), https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf (citing On the Team). The On the Team report noted that policies that may be appropriate at the college level may “be unfair and too complicated for [the high school] level of competition.” On the Team at 26. After engaging in similar processes, some state interscholastic athletics associations have adopted policies for participation by transgender students in high school athletics that they determined were age-appropriate.
19 34 C.F.R. § 106.34(a), (b). Schools may also separate students by sex in physical education classes during participation in contact sports. Id. § 106.34(a)(1).
20 20 U.S.C. § 1681(a)(1); 34 C.F.R. § 106.15(d); 34 C.F.R. § 106.34(c) (a recipient may offer a single-sex public nonvocational elementary and secondary school so long as it provides students of the excluded sex a “substantially

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equal single-sex school or coeducational school”). 21 20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a). 22 20 U.S.C. § 1686; 34 C.F.R. § 106.32. 23 See, e.g., Resolution Agreement, In re Arcadia Unified. Sch. Dist., CA, OCR Case No. 09-12-1020, DOJ Case No. 169-12C-70, (July 24, 2013), www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadiaagree.pdf (agreement to provide access to single-sex overnight events consistent with students’ gender identity, but allowing students to request access to private facilities). 24 See 34 C.F.R. §§ 106.31(a), 106.31(b)(4). See also, In re Downey Unified Sch. Dist., CA, supra n. 9; In re Cent. Piedmont Cmty. Coll., NC, supra n. 11. 25 34 C.F.R. § 106.31(b)(7). 26 20 U.S.C. § 1232g; 34 C.F.R. Part 99. FERPA is administered by ED’s Family Policy Compliance Office (FPCO). Additional information about FERPA and FPCO is available at www.ed.gov/fpco. 27 20 U.S.C. § 1232g(b)(1)(A); 34 C.F.R. § 99.31(a)(1). 28 34 C.F.R. §§ 99.3, 99.31(a)(11), 99.37. 29 20 U.S.C. § 1232g(a)(5)(A); 34 C.F.R. § 99.3. 30 Letter from FPCO to Institutions of Postsecondary Education 3 (Sept. 2009), www.ed.gov/policy/gen/guid/fpco/doc/censuslettertohighered091609.pdf. 31 20 U.S.C. § 1232g(a)(5)(B); 34 C.F.R. §§ 99.3. 99.37(a)(3). 32 34 C.F.R. § 99.20. 33 34 C.F.R. §§ 99.20-99.22. 34 See 34 C.F.R. § 106.31(b)(4). 35 34 C.F.R. § 106.8(b).

Examples of Policies and Emerging Practices for Supporting Transgender Students
U.S. Department of Education Office of Elementary and Secondary Education Office of Safe and Healthy Students May 2016

U.S. Department of Education Office of Elementary and Secondary Education Office of Safe and Healthy Students
Ann Whalen Senior Advisor to the Secretary, Delegated the Duties of the Assistant Secretary, Office of Elementary and Secondary Education
David Esquith Director, Office of Safe and Healthy Students
May 2016 This resource is in the public domain. Authorization to reproduce it in whole or in part is granted. The guide’s citation should be: U.S. Department of Education, Office of Elementary and Secondary Education, Office of Safe and Healthy Students, Examples of Policies and Emerging Practices for Supporting Transgender Students (May 2016).
This guide is also available on the Office of Safe and Healthy Students website at www.ed.gov/oese/oshs/emergingpractices.pdf. Any updates to this guide will be available at this website.
If you need technical assistance, please contact the Office of Safe and Healthy Students at: OESE.Info.SupportingTransgenderStudents@ed.gov
Availability of Alternate Formats Requests for documents in alternate formats such as Braille or large print should be submitted to the Alternate Format Center by calling 202-260-0852 or by contacting the 504 coordinator via e-mail at om_eeos@ed.gov. Notice to Limited English Proficient Persons If you have difficulty understanding English you may request language assistance services for Department information that is available to the public. These language assistance services are available free of charge. If you need more information about interpretation or translation services, please call 1-800-USA-LEARN (1-800-8725327) (TTY: 1-800-437-0833), or e-mail us at ED.Language.Assistance@ed.gov. Or write to U.S. Department of Education, Information Resource Center, LBJ Education Building, 400 Maryland Ave. SW, Washington, DC 20202.

Examples of Policies and Emerging Practices for Supporting Transgender Students
The U.S. Department of Education (“ED”) is committed to providing schools with the information they need to provide a safe, supportive, and nondiscriminatory learning environment for all students. It has come to ED’s attention that many transgender students (i.e., students whose gender identity is different from the sex they were assigned at birth) report feeling unsafe and experiencing verbal and physical harassment or assault in school, and that these students may perform worse academically when they are harassed. School administrators, educators, students, and parents are asking questions about how to support transgender students and have requested clarity from ED. In response, ED developed two documents:
 ED’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division jointly issued a Dear Colleague Letter (“DCL”) about transgender students’ rights and schools’ legal obligations under Title IX of the Education Amendments of 1972.1 Any school that has questions related to transgender students or wants to be prepared to address such issues if they arise should review the DCL.
 ED’s Office of Elementary and Secondary Education compiled the attached examples of policies2 and emerging practices3 that some schools are already using to support transgender students. We share some common questions on topics such as school records, privacy, and terminology, and then explain how some state and school district policies have answered these questions. We present this information to illustrate how states and school districts are supporting transgender students. We also provide information about and links to those policies at the end of the document, along with other resources that may be helpful as educators develop policies and practices for their own schools.
1 20 U.S.C. §§ 1681-1688; Dear Colleague Letter: Transgender Students (May 13, 2016), www.ed.gov/ocr/letters/colleague-201605-title-ix-transgender.pdf. 2 In this document, the term policy or policies refers generally to policies, guidance, guidelines, procedures, regulations, and resource guides issued by schools, school districts, and state educational agencies. 3 ED considers emerging practices to be operational activities or initiatives that contribute to successful outcomes or enhance agency performance capabilities. Emerging practices are those that have been successfully implemented and demonstrate the potential for replication by other agencies. Emerging practices typically have not been rigorously evaluated, but still offer ideas that work in specific situations.
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Each person is unique, so the needs of individual transgender students vary. But a school policy setting forth general principles for supporting transgender students can help set clear expectations for students and staff and avoid unnecessary confusion, invasions of privacy, and other harms. The education community continues to develop and revise policies and practices to address the rights of transgender students and reflect our evolving understanding and the individualized nature of transgender students’ needs. This document contains information from some schools, school districts, and state and federal agencies. Inclusion of this information does not constitute an endorsement by ED of any policy or practice, educational product, service, curriculum or pedagogy. In addition, this document references websites that provide information created and maintained by other entities. These references are for the reader’s convenience. ED does not control or guarantee the accuracy, relevance, timeliness, or completeness of this outside information. This document does not constitute legal advice, create legal obligations, or impose new requirements.
ii

Table of Contents Student Transitions ............................................................................................................... 1
1. How do schools find out that a student will transition? ................................................. 1 2. How do schools confirm a student’s gender identity? .................................................... 1 3. How do schools communicate with the parents of younger students compared to
older transgender students? ........................................................................................... 2 Privacy, Confidentiality, and Student Records ........................................................................ 4
4. How do schools protect a transgender student’s privacy regarding the student’s transgender status? ......................................................................................................... 4
5. How do schools ensure that a transgender student is called by the appropriate name and pronouns? ................................................................................................................. 5
6. How do schools handle requests to change the name or sex designation on a student’s records? ........................................................................................................................... 6
Sex-Segregated Activities and Facilities.................................................................................. 7 7. How do schools ensure transgender students have access to facilities consistent with their gender identity? ...................................................................................................... 7 8. How do schools protect the privacy rights of all students in restrooms or locker rooms? ............................................................................................................................. 7 9. How do schools ensure transgender students have the opportunity to participate in physical education and athletics consistent with their gender identity? ....................... 8 10. How do schools treat transgender students when they participate in field trips and athletic trips that require overnight accommodations? ................................................. 9
Additional Practices to Support Transgender Students ......................................................... 10 11. What can schools do to make transgender students comfortable in the classroom?.. 10 12. How do school dress codes apply to transgender students? ........................................ 10 13. How do schools address bullying and harassment of transgender students? .............. 11 14. How do school psychologists, school counselors, school nurses, and school social workers support transgender students? ....................................................................... 11 15. How do schools foster respect for transgender students among members of the broader school community?.......................................................................................... 12 16. What topics do schools address when training staff on issues related to transgender students? ....................................................................................................................... 12 17. How do schools respond to complaints about the way transgender students are treated? ......................................................................................................................... 13
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Terminology ........................................................................................................................ 14 18. What terms are defined in current school policies on transgender students?............. 14 19. How do schools account for individual preferences and the diverse ways that students describe and express their gender?............................................................................... 15
Cited Policies on Transgender Students................................................................................ 16 Select Federal Resources on Transgender Students .............................................................. 18
iv

Student Transitions
1. How do schools find out that a student will transition?
Typically, the student or the student’s parent or guardian will tell the school and ask that the school start treating the student in a manner consistent with the student’s gender identity. Some students transition over a school break, such as summer break. Other students may undergo a gender transition during the school year, and may ask (or their parents may ask on their behalf) teachers and other school employees to respect their identity as they begin expressing their gender identity, which may include changes to their dress and appearance. Some school district or state policies address how a student or parent might provide the relevant notice to the school.
 Alaska’s Matanuska-Susitna Borough School District issued guidelines (“Mat-Su Borough Guidelines”) advising that transgender students or their parents or guardians should contact the building administrator or the student’s guidance counselor to schedule a meeting to develop a plan to address the student’s particular circumstances and needs.
 The guidelines issued by Washington’s Superintendent of Public Instruction (“Washington State Guidelines”) offer an example of a student who first attended school as a boy and, about midway through a school year, she and her family decided that she would transition and begin presenting as a girl. She prefers to dress in stereotypically feminine attire such as dresses and skirts. Although she is growing her hair out and consistently presents as female at school, her hair is still in a rather short, typically boyish haircut. The student, her parents, and school administrators asked her friends and teachers to use female pronouns to address her.
2. How do schools confirm a student’s gender identity?
Schools generally rely on students’ (or in the case of younger students, their parents’ or guardians’) expression of their gender identity. Although schools sometimes request some form of confirmation, they generally accept the student’s asserted gender identity. Some schools offer additional guidance on this issue.
 Los Angeles Unified School District issued a policy (“LAUSD Policy”) noting that “[t]here is no medical or mental health diagnosis or treatment threshold that
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students must meet in order to have their gender identity recognized and respected” and that evidence may include an expressed desire to be consistently recognized by their gender identity.
 The New York State Education Department issued guidance (“NYSED Guidance”) recommending that “schools accept a student’s assertion of his/her/their own gender identity” and provides examples of ways to confirm the assertion, such as a statement from the student or a letter from an adult familiar with the student’s situation. The same guidance also offers the following example: “In one middle school, a student explained to her guidance counselor that she was a transgender girl who had heretofore only been able to express her female gender identity while at home. The stress associated with having to hide her female gender identity by presenting as male at school was having a negative impact on her mental health, as well as on her academic performance. The student and her parents asked if it would be okay if she expressed her female gender identity at school. The guidance counselor responded favorably to the request. The fact that the student presented no documentation to support her gender identity was not a concern since the school had no reason to believe the request was based on anything other than a sincerely held belief that she had a female gender identity.”
 Alaska’s Anchorage School District developed administrative guidelines (“Anchorage Administrative Guidelines”) noting that being transgender “involves more than a casual declaration of gender identity or expression but does not require proof of a formal evaluation and diagnosis. Since individual circumstances, needs, programs, facilities and resources may differ; administrators and school staff are expected to consider the needs of the individual on a case-by-case basis.”
3. How do schools communicate with the parents of younger students compared to older transgender students?
Parents are often the first to initiate a conversation with the school when their child is transgender, particularly when younger children are involved. Parents may play less of a role in an older student’s transition. Some school policies recommend, with regard to an older student, that school staff consult with the student before reaching out to the student’s parents.
 The District of Columbia Public Schools issued guidance (“DCPS Guidance”) noting that “students may choose to have their parents participate in the transition process, but parental participation is not required.” The guidance further
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recommends different developmentally appropriate protocols depending on grade level. The DCPS Guidance suggests that the school work with a young student’s family to identify appropriate steps to support the student, but recommends working closely with older students prior to notification of family. The guidance also provides a model planning document with key issues to discuss with the student or the student’s family.
 Similarly, the Massachusetts Department of Elementary and Secondary Education issued guidance (“Massachusetts Guidance”) that notes: “Some transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent or guardian. For the same reasons, school personnel should discuss with the student how the school should refer to the student, e.g., appropriate pronoun use, in written communication to the student’s parent or guardian.”
 Chicago Public Schools’ guidelines (“Chicago Guidelines”) provide: “When speaking with other staff members, parents, guardians, or third parties, school staff should not disclose a student’s preferred name, pronoun, or other confidential information pertaining to the student’s transgender or gender nonconforming status without the student’s permission, unless authorized to do so by the Law Department.”
 Oregon’s Department of Education issued guidance stating, “In a case where a student is not yet able to self-advocate, the request to respect and affirm a student’s identity will likely come from the student’s parent. However, in other cases, transgender students may not want their parents to know about their transgender identity. These situations should be addressed on a case-by-case basis and school districts should balance the goal of supporting the student with the requirement that parents be kept informed about their children. The paramount consideration in such situations should be the health and safety of the student, while also making sure that the student’s gender identity is affirmed in a manner that maintains privacy and confidentiality.”
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Privacy, Confidentiality, and Student Records
4. How do schools protect a transgender student’s privacy regarding the student’s transgender status?
There are a number of ways schools protect transgender students’ interests in keeping their transgender status private, including taking steps to prepare staff to consistently use the appropriate name and pronouns. Using transgender students’ birth names or pronouns that do not match their gender identity risks disclosing a student’s transgender status. Some state and school district policies also address how federal and state privacy laws apply to transgender students and how to keep information about a student’s transgender status confidential.
 California’s El Rancho Unified School District issued a regulation (“El Rancho Regulation”) that provides that students have the right to openly discuss and express their gender identity, but also reminds school personnel to be “mindful of the confidentiality and privacy rights of [transgender] students when contacting parents/legal guardians so as not to reveal, imply, or refer to a student’s actual or perceived sexual orientation, gender identity, or gender expression.”
 The Chicago Guidelines provide that the school should convene an administrative support team to work with transgender students and/or their parents or guardians to address each student’s individual needs and supports. To protect the student’s privacy, this team is limited to “the school principal, the student, individuals the student identifies as trusted adults, and individuals the principal determines may have a legitimate interest in the safety and healthy development of the student.”
 The Mat-Su Borough Guidelines state: “In some cases, a student may want school staff and students to know, and in other cases the student may not want this information to be widely known. School staff should take care to follow the student’s plan and not to inadvertently disclose information that is intended to be kept private or that is protected from disclosure (such as confidential medical information).”
 The Massachusetts Guidance advises schools “to collect or maintain information about students’ gender only when necessary” and offers an example: “One school reviewed the documentation requests it sent out to families and noticed that field trip permission forms included a line to fill in indicating the student’s gender. Upon consideration, the school determined that the requested information was irrelevant to the field trip activities and deleted the line with the gender marker request.”
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5. How do schools ensure that a transgender student is called by the appropriate name and pronouns?
One of the first issues that school officials may address when a student notifies them of a gender transition is determining which name and pronouns the student prefers. Some schools have adopted policies to prepare all school staff and students to use a student’s newly adopted name, if any, and pronouns that are consistent with a student’s gender identity.
 A regulation issued by Nevada’s Washoe County School District (“Washoe County Regulation”) provides that: “Students have the right to be addressed by the names and pronouns that correspond to their gender identity. Using the student’s preferred name and pronoun promotes the safety and wellbeing of the student. When possible, the requested name shall be included in the District’s electronic database in addition to the student’s legal name, in order to inform faculty and staff of the name and pronoun to use when addressing the student.”
 A procedure issued by Kansas City Public Schools in Missouri (“Kansas City Procedure”) notes that: “The intentional or persistent refusal to respect the gender identity of an employee or student after notification of the preferred pronoun/name used by the employee or student is a violation of this procedure.”
 The NYSED Guidance provides: “As with most other issues involved with creating a safe and supportive environment for transgender students, the best course is to engage the student, and possibly the parent, with respect to name and pronoun use, and agree on a plan to reflect the individual needs of each student to initiate that name and pronoun use within the school. The plan also could include when and how this is communicated to students and their parents.”
 The DCPS Guidance includes a school planning guide for principals to review with transgender students as they plan how to ensure the school environment is safe and supportive. The school planning guide allows the student to identify the student’s gender identity and preferred name, key contacts at home and at school, as well as develop plans for access to restrooms, locker rooms, and other school activities.
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6. How do schools handle requests to change the name or sex designation on a student’s records?
Some transgender students may legally change their names. However, transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to financial limitations or legal restrictions imposed by state or local law). Some school district policies specify that they will use the name a student identifies as consistent with the student’s gender identity regardless of whether the student has completed a legal name change.
 The NYSED Guidance provides that school records, including attendance records, transcripts, and Individualized Education Programs, be updated with the student’s chosen name and offers an example: “One school administrator dealt with information in the student’s file by starting a new file with the student’s chosen name, entered previous academic records under the student’s chosen name, and created a separate, confidential folder that contained the student’s past information and birth name.”
 The DCPS Guidance notes: “A court-ordered name or gender change is not required, and the student does not need to change their official records. If a student wishes to go by another name, the school’s registrar can enter that name into the ‘Preferred First’ name field of [the school’s] database.”
 The Kansas City Procedure recognizes that there are certain situations where school staff or administrators may need to report a transgender student’s legal name or gender. The procedure notes that in these situations, “school staff and administrators shall adopt practices to avoid the inadvertent disclosure of such confidential information.”
 The Chicago Guidelines state: “Students are not required to obtain a court order and/or gender change or to change their official records as a prerequisite to being addressed by the name and pronoun that corresponds to their gender identity.”
 The Massachusetts Guidance also addresses requests to amend records after graduation: “Transgender students who transition after having completed high school may ask their previous schools to amend school records or a diploma or transcript that include the student’s birth name and gender. When requested, and when satisfied with the gender identity information provided, schools should amend the student’s record.”
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Sex-Segregated Activities and Facilities
7. How do schools ensure transgender students have access to facilities consistent with their gender identity?
Schools often segregate restrooms and locker rooms by sex, but some schools have policies that students must be permitted to access facilities consistent with their gender identity and not be required to use facilities inconsistent with their gender identity or alternative facilities.
 The Washington State Guidelines provide: “School districts should allow students to use the restroom that is consistent with their gender identity consistently asserted at school.” In addition, no student “should be required to use an alternative restroom because they are transgender or gender nonconforming.”
 The Washoe County Regulation provides: “Students shall have access to use facilities that correspond to their gender identity as expressed by the student and asserted at school, irrespective of the gender listed on the student’s records, including but not limited to locker rooms.”
 The Anchorage Administrative Guidelines emphasize the following provision: “However, staff should not require a transgender or gender nonconforming student/employee to use a separate, nonintegrated space unless requested by the individual student/employee.”
8. How do schools protect the privacy rights of all students in restrooms or locker rooms?
Many students seek additional privacy in school restrooms and locker rooms. Some schools have provided students increased privacy by making adjustments to sex-segregated facilities or providing all students with access to alternative facilities.
 The Washington State Guidelines provide that any student who wants increased privacy should be provided access to an alternative restroom or changing area. The guidelines explain: “This allows students who may feel uncomfortable sharing the facility with the transgender student(s) the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student.”
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 The NYSED Guidance gives an example of accommodating all students’ interest in privacy: “In one high school, a transgender female student was given access to the female changing facility, but the student was uncomfortable using the female changing facility with other female students because there were no private changing areas within the facility. The principal examined the changing facility and determined that curtains could easily be put up along one side of a row of benches near the group lockers, providing private changing areas for any students who wished to use them. After the school put up the curtains, the student was comfortable using the changing facility.”
 Atherton High School, in Jefferson County, Kentucky, issued a policy that offers examples of accommodations to address any student’s request for increased privacy: “use of a private area within the public area of the locker room facility (e.g. nearby restroom stall with a door or an area separated by a curtain); use of a nearby private area (e.g. nearby restroom); or a separate changing schedule.”
 The DCPS Guidance recommends talking to students to come up with an acceptable solution: “Ultimately, if a student expresses discomfort to any member of the school staff, that staff member should review these options with the student and ask the student permission to engage the school LGBTQ liaison or another designated ally in the building.”
9. How do schools ensure transgender students have the opportunity to participate in physical education and athletics consistent with their gender identity?
Some school policies explain the procedures for establishing transgender students’ eligibility to participate in athletics consistent with their gender identity. Many of those policies refer to procedures established by state athletics leagues or associations.
 The NYSED Guidance explains that “physical education is a required part of the curriculum and an important part of many students’ lives. Most physical education classes in New York’s schools are coed, so the gender identity of students should not be an issue with respect to these classes. Where there are sex-segregated classes, students should be allowed to participate in a manner consistent with their gender identity.”
 The LAUSD Policy provides that “participation in competitive athletics, intramural sports, athletic teams, competitions, and contact sports shall be facilitated in a
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manner consistent with the student’s gender identity asserted at school and in accordance with the California Interscholastic Federation bylaws.” The California Interscholastic Federation establishes a panel of professionals, including at least one person with training or expertise in gender identity health care or advocacy, to make eligibility decisions.
 The Rhode Island Interscholastic League’s policy states that all students should have the opportunity to participate in athletics consistent with their gender identity, regardless of the gender listed on school records. The policy provides that the league will base its eligibility determination on the student’s current transcript and school registration information, documentation of the student’s consistent gender identification (e.g., affirmed written statements from student, parent/guardian, or health care provider), and any other pertinent information.
10. How do schools treat transgender students when they participate in field trips and athletic trips that require overnight accommodations?
Schools often separate students by sex when providing overnight accommodations. Some school policies provide that students must be treated consistent with their gender identity in making such assignments.
 Colorado’s Boulder Valley School District issued guidelines (“Boulder Valley Guidelines”) providing that when a school plans overnight accommodations for a transgender student, it should consider “the goals of maximizing the student’s social integration and equal opportunity to participate in overnight activity and athletic trips, ensuring the [transgender] student’s safety and comfort, and minimizing stigmatization of the student.”
 The Chicago Guidelines remind school staff: “In no case should a transgender student be denied the right to participate in an overnight field trip because of the student’s transgender status.”
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Additional Practices to Support Transgender Students
11. What can schools do to make transgender students comfortable in the classroom?
Classroom practices that do not distinguish or differentiate students based on their gender are the most inclusive for all students, including transgender students.
 The DCPS Guidance suggests that “[w]herever arbitrary gender dividers can be avoided, they should be eliminated.”
 The Massachusetts Guidance states that “[a]s a general matter, schools should evaluate all gender-based policies, rules, and practices and maintain only those that have a clear and sound pedagogical purpose.”
 Minneapolis Public Schools issued a policy providing that students generally should not be grouped on the basis of sex for the purpose of instruction or study, but rather on bases such as student proficiency in the area of study, student interests, or educational needs for acceleration or enrichment.
 The Maryland State Department of Education issued guidelines that include an example of eliminating gender-based sorting of students: “Old Practice: boys line up over here.” New Practice: birthdays between January and June; everybody who is wearing something green, etc.”
12. How do school dress codes apply to transgender students?
Dress codes that apply the same requirements regardless of gender are the most inclusive for all students and avoid unnecessarily reinforcing sex stereotypes. To the extent a school has a dress code that applies different standards to male and female students, some schools have policies that allow transgender students to dress consistent with their gender identity.
 Wisconsin’s Shorewood School District issued guidelines (“Shorewood Guidelines”) that allow students to dress in accordance with their gender identity and remind school personnel that they must not enforce a dress code more strictly against transgender and gender nonconforming students than other students.
 The Washington State Guidelines encourage school districts to adopt gender-neutral dress codes that do not restrict a student’s clothing choices on the basis of gender: “Dress codes should be based on educationally relevant considerations, apply
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consistently to all students, include consistent discipline for violations, and make reasonable accommodations when the situation requires an exception.”
13. How do schools address bullying and harassment of transgender students?
Unfortunately, bullying and harassment continue to be a problem facing many students, and transgender students are no exception. Some schools make clear in their nondiscrimination statements that prohibited sex discrimination includes discrimination based on gender identity and expression. Their policies also address this issue.
 The NYSED Guidance stresses the importance of protecting students from bullying and harassment because “[the] high rates experienced by transgender students correspond to adverse health and educational consequences,” including higher rates of absenteeism, lower academic achievement, and stunted educational aspirations.
 The Shorewood Guidelines specify that harassment based on a student’s actual or perceived transgender status or gender nonconformity is prohibited and notes that these complaints are to be handled in the same manner as other discrimination, harassment, and bullying complaints.
 The DCPS Guidance provides examples of prohibited harassment that transgender students sometimes experience, including misusing an individual’s preferred name or pronouns on purpose, asking personal questions about a person’s body or gender transition, and disclosing private information.
14. How do school psychologists, school counselors, school nurses, and school social workers support transgender students?
School counselors can help transgender students who may experience mental health disorders such as depression, anxiety, and posttraumatic stress. Mental health staff may also consult with school administrators to create inclusive policies, programs, and practices that prevent bullying and harassment and ensure classrooms and schools are safe, healthy, and supportive places where all students, including transgender students, are respected and can express themselves. Schools will be in a better position to support transgender students if they communicate to all students that resources are available, and that they are competent to provide support and services to any student who has questions related to gender identity.
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 The NYSED Guidance suggests that counselors can serve as a point of contact for transgender students who seek to take initial steps to assert their gender identity in school.
 The Chicago Guidelines convene a student administrative support team to determine the appropriate supports for transgender students. The team consists of the school principal, the student, adults that the student trusts, and individuals the principal determines may have a legitimate interest in the safety and healthy development of the student.
15. How do schools foster respect for transgender students among members of the broader school community?
Developing a clear policy explaining how to support transgender students can help communicate the importance the school places on creating a safe, healthy, and nondiscriminatory school climate for all students. Schools can do this by providing educational programs aimed at staff, students, families, and other community members.
 The Massachusetts Guidance informs superintendents and principals that they “need to review existing policies, handbooks, and other written materials to ensure they are updated to reflect the inclusion of gender identity in the student antidiscrimination law, and may wish to inform all members of the school community, including school personnel, students, and families of the recent change to state law and its implications for school policy and practice. This could take the form of a letter that states the school’s commitment to being a supportive, inclusive environment for all students.”
 The NYSED Guidance states that “school districts are encouraged to provide this guidance document and other resources, such as trainings and information sessions, to the school community including, but not limited to, parents, students, staff and residents.”
16. What topics do schools address when training staff on issues related to transgender students?
Schools can reinforce commitments to providing safe, healthy, and nondiscriminatory school climates by training all school personnel about appropriate and respectful treatment of all students, including transgender students.
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 The Massachusetts Guidance suggests including the following topics in faculty and staff training “key terms related to gender identity and expression; the development of gender identity; the experiences of transgender and other gender nonconforming students; risks and resilience data regarding transgender and gender nonconforming students; ways to support transgender students and to improve school climate for gender nonconforming students; [and] gender-neutral language and practices.”
 The El Rancho Regulation states that the superintendent or designee “shall provide to employees, volunteers, and parents/guardians training and information regarding the district’s nondiscrimination policy; what constitutes prohibited discrimination, harassment, intimidation, or bullying; how and to whom a report of an incident should be made; and how to guard against segregating or stereotyping students when providing instruction, guidance, supervision, or other services to them. Such training and information shall include guidelines for addressing issues related to transgender and gender-nonconforming students.”
17. How do schools respond to complaints about the way transgender students are treated?
School policies often provide that complaints from transgender students be handled under the same policy used to resolve other complaints of discrimination or harassment.
 The Boulder Valley Guidelines provide that “complaints alleging discrimination or harassment based on a person’s actual or perceived transgender status or gender nonconformity are to be handled in the same manner as other discrimination or harassment complaints.”
 The Anchorage Administrative Guidelines provide that “students may also use the Student Grievance Process to address any civil rights issue, including transgender issues at school.”
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Terminology
18. What terms are defined in current school policies on transgender students?
Understanding the needs of transgender students includes understanding relevant terminology. Most school policies define commonly used terms to assist schools in understanding key concepts relevant to transgender students. The list below is not exhaustive, and only includes examples of some of the most common terms that school policies define.
 Gender identity refers to a person’s deeply felt internal sense of being male or female, regardless of their sex assigned at birth. (Washington State Guidelines)
 Sex assigned at birth refers to the sex designation, usually “male” or “female,” assigned to a person when they are born. (NYSED Guidance)
 Gender expression refers to the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice or mannerisms. (Washoe County Regulation)
 Transgender or trans describes a person whose gender identity does not correspond to their assigned sex at birth. (Massachusetts Guidance)
 Gender transition refers to the process in which a person goes from living and identifying as one gender to living and identifying as another. (Washoe County Regulation)
 Cisgender describes a person whose gender identity corresponds to their assigned sex at birth. (NYSED Guidance)
 Gender nonconforming describes people whose gender expression differs from stereotypic expectations. The terms gender variant or gender atypical are also used. Gender nonconforming individuals may identify as male, female, some combination of both, or neither. (NYSED Guidance)
 Intersex describes individuals born with chromosomes, hormones, genitalia and/or other sex characteristics that are not exclusively male or female as defined by the medical establishment in our society. (DCPS Guidance)
 LGBTQ is an acronym that stands for “lesbian, gay, bisexual, transgender, and queer/questioning.” (LAUSD Policy)
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 Sexual orientation refers to a person’s emotional and sexual attraction to another person based on the gender of the other person. Common terms used to describe sexual orientation include, but are not limited to, heterosexual, lesbian, gay, and bisexual. Sexual orientation and gender identity are different. (LAUSD Policy)
19. How do schools account for individual preferences and the diverse ways that students describe and express their gender?
Some students may use different terms to identify themselves or describe their situations. For example, a transgender male student may identify simply as male, consistent with his gender identity. The same principles apply even if students use different terms. Some school policies directly address this question and provide additional guidance.
 The Washington State Guidelines recognize how “terminology can differ based on religion, language, race, ethnicity, age, culture and many other factors.”
 Washington’s Federal Way School District issued a resource guide that states: “Keep in mind that the meaning of gender conformity can vary from culture to culture, so these may not translate exactly to Western ideas of what it means to be transgender. Some of these identities include Hijra (South Asia), Fa’afafine (Samoa), Kathoey (Thailand), Travesti (South America), and Two-Spirit (Native American/First Nations).”
 The Washoe County Regulation, responding to cultural diversity within the state, offers examples of “ways in which transgender and gender nonconforming youth describe their lives and gendered experiences: trans, transsexual, transgender, male-to-female (MTF), female-to-male (FTM), bi-gender, two-spirit, trans man, and trans woman.”
 The DCPS Guidance provides this advice to staff: “If you are unsure about a student’s preferred name or pronouns, it is appropriate to privately and tactfully ask the student what they prefer to be called. Additionally, when speaking about a student it is rarely necessary to label them as being transgender, as they should be treated the same as the rest of their peers.”
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Cited Policies on Transgender Students
 Anchorage School District (AK): Administrative Guidelines: Working with Transgender and Gender Nonconforming Students and Employees (2015) (on file with ED)
 Atherton High School, Jefferson County School District (KY), Policy on School Space (2014), www.jefferson.k12.ky.us/schools/high/atherton/SBDMDocuments/Policy%20500%20Draft -%20Los%20Angeles%20Unified%20School%20District%20Revised%20Model.pdf
 Boulder Valley School District (CO), Guidelines Regarding the Support of Students and Staff Who Are Transgender and/or Gender Nonconforming (2016), http://www.bvsd.org/policies/Policies/AC-E3.pdf
 California Interscholastic Federation, Guidelines for Gender Identity Participation (2015), http://static.psbin.com/m/5/0ndq7wwfgh2em9/Guidelines_for_Gender_Identity_Participa tion.pdf
 Chicago Public Schools (IL), Guidelines Regarding the Support of Transgender and Gender Nonconforming Students (2016), cps.edu/SiteCollectionDocuments/TL_TransGenderNonconformingStudents_Guidelines.pd f
 District of Columbia Public Schools, Transgender and Gender-Nonconforming Policy Guidance (2015), dcps.dc.gov/publication/dcps-transgender-and-gender-non-conformingpolicy-guidance
 El Rancho Unified School District, Transgender and Gender-Nonconforming Students (AR 5145.3) (2014), www.erusd.org/pdf/board_policies/5145_3.pdf
 Federal Way Public Schools (WA), Working with Transgender and Gender-Nonconforming Students and Staff (2014-2015), www.fwps.net/districtresources/wpcontent/uploads/sites/32/2013/12/FWPS_Transgender3.pdf?7a385a
 Kansas City 33 School District (MO), Prohibition Against Discrimination, Harassment and Retaliation (Transgender and Gender Nonconforming Employee and Students) (2013), eboard.eboardsolutions.com/ePolicy/policy.aspx?PC=ACAP(1)&Sch=228&S=228&RevNo=1.01&C=A&Z=R
 Los Angeles Unified School District (CA), Transgender Students – Ensuring Equity and Nondiscrimination (2014), notebook.lausd.net/pls/ptl/docs/PAGE/CA_LAUSD/FLDR_ORGANIZATIONS/FLDR_GENERAL _COUNSEL/BUL-6224.1%20TRANSGENDER%20POLICY,%2008-15-14%20%20ADDED%20ED%20CODE%20221%205.PDF
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 Maryland State Department of Education, Providing Safe Spaces for Transgender and Gender Non-Conforming Youth: Guidelines for Gender Identity Non-Discrimination (2015), marylandpublicschools.org/MSDE/divisions/studentschoolsvcs/student_services_alt/docs/ ProvidingSafeSpacesTransgendergenderNonConformingYouth012016.pdf
 Massachusetts Department of Elementary and Secondary Education, Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment Nondiscrimination on the Basis of Gender Identity (2014), www.doe.mass.edu/ssce/GenderIdentity.pdf
 Matanuska-Susitna Borough School District (AK), Transgender Student Guidelines (2015), www.matsuk12.us/site/handlers/filedownload.ashx?moduleinstanceid=10846&dataid=41 646&FileName=Title IX--Transgender Students Guidelines.pdf
 Minneapolis Public Schools (MN), Permissible Grouping Principles (2014), policy.mpls.k12.mn.us/uploads/regulation_6135_a.pdf
 New York State Education Department, Guidance to School Districts for Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students (2015), www.p12.nysed.gov/dignityact/documents/Transg_GNCGuidanceFINAL.pdf
 Oregon Department of Education, Guidance to School Districts: Creating a Safe and Supportive School Environment for Transgender Students (2016), www.ode.state.or.us/groups/supportstaff/hklb/schoolnurses/transgenderstudentguidance .pdf.
 Rhode Island Interscholastic League, Rules & Regulations (Article I, Section 22 – Gender Identity), www.riil.org/files/8214/3861/6354/ARTICLE_1_ORGANIZATION_2015.pdf
 Shorewood School District (WI), Nondiscrimination Guidelines Related to Students Who Are Transgender and Students Nonconforming to Gender Role Stereotypes (2014), www.shorewood.k12.wi.us/uploaded/Board_Documents/Policies/411_Guidelines_and_Ex hibit.pdf?1393865642372
 Washington Office of State Superintendent of Public Instruction, Prohibiting Discrimination in Washington Public Schools (2012), www.k12.wa.us/Equity/pubdocs/ProhibitingDiscriminationInPublicSchools.pdf
 Washoe County School District (NV), Gender Identity and Gender Non-Conformity – Students (2015), washoecountyschools.net/csi/pdf_files/5161%20Reg%20%20Gender%20Identity%20v1.pdf
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Select Federal Resources on Transgender Students
 U.S. Department of Education
o Office for Civil Rights and U.S. Department of Justice’s Civil Rights Division, Dear Colleague Letter: Transgender Students (May 13, 2016), www.ed.gov/ocr/letters/colleague-201605-title-ix-transgender.pdf
o Office for Civil Rights, Resources for Transgender and Gender-Nonconforming Students, www.ed.gov/ocr/lgbt.html
o Office for Civil Rights, Publications on Title IX, www.ed.gov/about/offices/list/ocr/publications.html#TitleIX
o Office for Civil Rights, How to File a Discrimination Complaint, www.ed.gov/about/offices/list/ocr/docs/howto.html
o National Center on Safe Supportive Learning Environments, safesupportivelearning.ed.gov
 U.S. Department of Health and Human Services
o Administration for Children and Families, Resources for Serving Lesbian, Gay, Bisexual and Transgender Youth, http://ncfy.acf.hhs.gov/features/servinglesbian-gay-bisexual-transgender-and-questioning-youth-openarms/resources-serving
o Centers for Disease Control and Prevention, LGBT Youth Resources, www.cdc.gov/lgbthealth/youth-resources.htm
o Homelessness Resource Center, Homeless Populations: LGBTQI2-S Youth, http://homeless.samhsa.gov/Channel/LGBTQ-153.aspx
o Stopbullying.gov, Bullying and LGBT Youth, http://www.stopbullying.gov/atrisk/groups/lgbt
 U.S. Department of Housing and Urban Development
o Community-Wide Prevention of LGBTQ Youth Homelessness (June 2015), https://www.hudexchange.info/resources/documents/LGBTQ-YouthHomelessness-Prevention-Initiative-Overview.pdf
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 U.S. Department of Labor o Office of Job Corps, Directive: Job Corps Program Instruction Notice No. 14-31 (May 1, 2015), https://supportservices.jobcorps.gov/Program Instruction Notices/pi_14_31.pdf
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