Courts Dividing Over Transgender Students' Rights, Creating Problems of Authority and Predictability
Earlier this summer, a federal district court judge in Texas rejected that the Department of Education's position that Title IX protects transgender students' access to bathrooms consistent with their gender identity. That opinion was in contrast to the Fourth Circuit Court of Appeals, which had upheld the Department's interpretation in Grimm v. Glouchester this past spring. This week the divide and stakes only deepened. This week the district court judge in Texas issued another opinion to clarify or expand his first one. He indicated that his injunction against the Department prevented it from enforcing its Title IX position not only in regard to the school district in question, not only in the state of Texas, but nationwide.
Interestingly, a federal magistrate judge in Illinois decided a case this week in which some students had tried to block other transgender students' access to restrooms consistent with their gender identity. They had argued that such access would infringe on the privacy rights of other students. The magistrate judge rejected this challenge, siding instead with the rights of transgender students and the Department of Education's position.
The various cases, particularly the nationwide injunction by the Texas court, raise serious issues of jurisdiction, conflicts, and enforce ability. If the Fourth Circuit, which covers South Carolina up through West Virginia and Maryland, has sided with the Department's position, can a Texas court enjoin the Department from carrying out that position? One would think not. Circuit splits happen all the time and one circuit does not impose its will on another. On the other hand, I imagine the court could hold the Department in contempt for violating its court order, even though that order might be beyond the trial court's authority. This problem explains why the Department of Justice immediately appealed the order yesterday and presumably the case might have some sort of expedited appealed. On the merits, such an appeal might be hard to expedite, but a court could deal with jurisdictional questions more easily through a temporary stay or other measures.Education Law Prof Blog: