February 17, 2017 Practice Points

DOJ Drops Appeal of Transgender Student Injunction

By Mor Wetzler

In August 2016, the District Court for the Northern District of Texas entered an injunction blocking implementation of Obama administration guidelines stating that transgender students' access to bathrooms and other gender-segregated school facilities was protected under existing federal civil rights law. The lawsuit, State of Texas, et al v. U.S., was filed by over a dozen states, and the Obama administration appealed the nationwide injunction and requested that it apply only to states involved in the lawsuit, rather than nationwide. Oral arguments to the Fifth Circuit Court of Appeals were scheduled to begin on Tuesday, February 14, 2017, but on Friday, February 10, the Justice Department withdrew the motion for partial stay pending appeal.

Other judicial challenges on the issue remain pending, including a lawsuit filed by a transgender student in Virginia against his school district, which is pending before the Supreme Court. G.G. v. Gloucester County School Board, No. 16-11534 (5th Cir 2016). In that case, plaintiff Grimm alleged that the school board denied him access to the boys' bathroom and told him to use a separate bathroom in a converted janitors' closet. The Fourth Circuit ruled in Grimm's favor, pointing to the Obama administration guidelines on transgender students and Title IX. The school board appealed that decision to the Supreme Court, and oral argument is scheduled March 28. Briefs are available here. Although Grimm's supporters previously hoped that the Justice Department would file an amicus brief in support, the DOJ's abandonment of the appeal in the Fifth Circuit suggests such support is unlikely.

Mor Wetzler is an associate at Paul Hastings in New York, New York.

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