State of Texas, et al. v. United States of America, et al.

Filing 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)

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

EXHIBIT K

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”?
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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2

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: [phone]
Fax: [phone]

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PATRICK MORRISEY
ATTORNEY GENERAL OF WEST VIRGINIA
State Capitol Complex
Building 1, Room E-26
Charleston, West Virginia 25305
Phone: [phone]
Fax: [phone]

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

P.O. Box 12548
Austin, Texas 78701
Phone: [phone]
Fax: [phone]

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