In an order filed Sunday, a federal district court in Texas issued an injunction barring the federal government from enforcing the administration’s position that federal civil rights laws require, among other things, that schools allow students to use those bathroom facilities that correspond with a student’s professed gender identity. This position was detailed in a “Dear Colleague” letter issued by the Education and Justice departments in May.

In a 38-page opinion, Judge Reed O’Connor concluded that the plaintiffs had standing to challenge the guidance documents at issue, that their claim was ripe for judicial resolution and that they had a substantial likelihood of success on the merits. The decision, in yet another case captioned Texas v. United States, will certainly be appealed.

The most important part of the decision was the court’s conclusion that the DOE/DOJ guidance was invalid because the agencies failed to go through a notice-and-comment rulemaking before declaring that, for instance, school districts are obligated to accommodate the stated gender identities of students under existing federal law. I think this is correct.

For years, most schools understood Title IX as applying to biological sex and existing law made it clear that schools could (but were not required to) provide sex-segregated bathroom and locker facilities. Whether or not the guidance is a good idea, it certainly represents a significant change in what schools are expected to do, and puts substantial amounts of federal funding at risk should schools fail to comply. (The issues extend beyond schools, but I’m just focusing on the application to the educational context.)

Although the “Dear Colleague” letter is presented as a non-binding guidance document, that is not its purpose or effect. The document throughout purports to establish and redefine school districts’ legal obligations under Title IX. As the court explained, the federal government’s “Guidelines and actions indicate that [plaintiff states and school districts] jeopardize their federal education funding by choosing not to comply with [the] Guidelines.” This is the sort of thing that agencies should do through rulemaking, not through a guidance or other non-binding policy document. This is particularly so where, as here, the federal government wishes to cite the guidance document as a definitive interpretation that is worthy of deference from the courts.

The court in this case went further and concluded that the guidance documents are also invalid because they contradict the relevant statutory and regulatory text in Title IX and the DOE’s implementing regulations. I am not sure the court needed to reach this question once it concluded that the guidance documents were invalid under the Administrative Procedure Act. I am also not sure that the court was correct to conclude that either the statute or the relevant regulations were “unambiguous.”

While it is fairly clear that Title IX was enacted to prevent discrimination against women, the language is broader than that. Further, if one believes that the plain text of a statute is more important than legislative history (as I do) there is a reasonable argument that it is unclear how a prohibition on discrimination “on the basis of sex” should apply to transgender individuals. So even if one is inclined to think the interpretation offered by O’Connor here (and Judge Niemeyer in his G.G. v. Gloucester County School Board dissent) is the better one, that does not mean the federal government is precluded from putting forth an alternative view

As I noted in a prior post:

There is [a] serious argument that the language of Title IX is sufficiently ambiguous that the Education Department could adopt a controlling interpretation in a properly promulgated regulation. Under Chevron, I would expect the Education Department to prevail should it ever issue a rule interpreting Title IX to cover transgender individuals in this way. The problem, however, is that the Education Department has never issued such a regulation, and has instead sought to sidestep this process through letters and “guidance” documents.

So should the federal government ever go through the process of issuing regulations that define and apply Title IX’s prohibitions in this way, such a rule could prevail.

Before reaching these questions, the court also addressed questions of standing and ripeness. This is because the federal government sought to argue that states and school districts lacked standing to challenge a guidance document that (the plaintiffs’ alleged) defined their obligations under federal law. The federal government also argued that the case was not ripe, and that the court should not hear a pre-enforcement challenge to the guidance documents, and should instead wait until the federal government brings an enforcement action against them. The court rejected both of these defenses under relevant circuit precedent, but I believe other circuits (such as the D.C. Circuit, where administrative law challenges of this sort are most-often heard) would have reached the same result.

An interesting note on statutory interpretation: We usually expect to see conservatives focus on statutory text and eschew reliance on legislative history. In this case, however, it is those taking the “conservative” position (the states and school districts challenging the guidance) that appeal to legislative history. This is because there is ample legislative history showing that the authors of Title IX were concerned about sex-based discrimination against women. And while we often expect liberals to appeal to broad notions of legislative intent and purpose, in this case those taking the “liberal” position argued legislative history was “irrelevant.”

One final little note. In the post above, I refer to a student’s “professed gender identity.” I chose these words carefully. When it comes to questions of gender identity, there is obviously some dispute over when it can be said that an individual has a gender identity that conflicts with that individual’s biological sex or sex assigned at birth.

In the Gloucester County case that I discussed in this post, the student at issue had been diagnosed with gender dysphoria. Under the DOE guidance, however, no such diagnosis is necessary. Rather, the Education and Justice departments maintained, Title IX “require[s] 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.”

In other words, the federal government’s position is that a student’s gender identity is established when such a claim is made by a student’s parent or legal guardian, and does not require a diagnosis of gender dysphoria. Indeed, as I read the guidance, a school would be violating the federal government’s interpretation of Title IX were it to require such a diagnosis or its equivalent before providing an accommodation. Note, however, that in other contexts in which a student may request accommodations from an educational institution, such as for a learning disability, it is routine for schools to require medical documentation, including diagnoses of any applicable conditions. This is a distinction that is not lost on many school administrators who are sympathetic with the federal government’s position, but are nonetheless concerned by the scope of the guidance at issue in this case.