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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
STATE OF TEXAS, ET AL.,
Plaintiffs,
V.
UNITED STATES OF AMERICA, ET AL.,
Defendants.

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

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR CLARIFICATION
OF THE COURT’S PRELIMINARY INJUNCTION ORDER

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TABLE OF CONTENTS
Introduction ................................................................................................................... 1
I.

The Court Enjoined Defendants’ Rule, Not Merely a Few Documents .......... 1

II.

The Scope of the Injunction .............................................................................. 3
A.

The Injunction Impacts Access to Intimate Areas .................................. 3

B.

Title VII, DOL, and OSHA ....................................................................... 5

C.

“Transgender” ........................................................................................... 8

D.

Geography ................................................................................................. 9

III.

Nature of Future Advocacy by Defendants—What Can Defendants Do From
This Point Forward? ....................................................................................... 10

IV.

Future Use of the Enjoined Guidances—What Can Defendants Use From
This Point Forward? ....................................................................................... 12

Conclusion .................................................................................................................... 16
Certificate of Service.................................................................................................... 18

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TABLE OF AUTHORITIES
Cases
Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320 (2006) ............................................................................................ 13–14
Cent. & S. W. Servs., Inc. v. EPA,
220 F.3d 683 (5th Cir. 2000) .................................................................................... 13
Davis v. Monroe County Bd. of Educ.,
526 U.S. 629 (1999) .................................................................................................... 6
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.,
No. 2:14-cv-13710 (E.D. Mich.) .................................................................................. 4
G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd.,
822 F.3d 709 (4th Cir. 2016) ...................................................................................... 9
Her Majesty the Queen in Right of Ontario v. EPA,
912 F.2d 1525 (D.C. Cir. 1990) ................................................................................ 12
Lightfoot v. D.C.,
339 F. Supp. 2d 78 (D.D.C. 2004) .............................................................................. 3
Milk Indus. Found. v. Glickman,
949 F. Supp. 882 (D.D.C. 1996) ............................................................................. 2, 8
Mora-Meraz v. Thomas,
601 F.3d 933 (9th Cir. 2010) ...................................................................................... 2
Nat’l Pork Producers Council v. EPA,
635 F.3d 738 (5th Cir. 2011) .................................................................................... 12
Osborne v. Ohio,
495 U.S. 103 (1990) .................................................................................................. 14
Phillips Petroleum Co. v. Johnson,
22 F.3d 616 (5th Cir. 1994) ........................................................................................ 2
Shell Offshore Inc. v. Babbitt,
238 F.3d 622 (5th Cir. 2001) ...................................................................................... 2
Stellas v. Esperdy,
366 F.2d 266 (2d Cir. 1966)........................................................................................ 3
United States v. Nat’l Treasury Emps. Union,
513 U.S. 454 (1995) .................................................................................................. 13
United States v. Reese,
92 U.S. 214 (1875) .................................................................................................... 14
United States v. Southeastern Okla. State Univ.,
No. 5:15-cv-324 (W.D. Okla.) ..................................................................................... 4
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Virginia v. Am. Booksellers Ass’n, Inc.,
484 U.S. 383 (1988) .................................................................................................. 13
Statutes
29 U.S.C. § 657–59 ......................................................................................................... 7
29 U.S.C. § 662 ............................................................................................................... 7
Rules
Fed. R. Civ. P. 11 ......................................................................................................... 11
Other Authorities
OSHA’s 2015 Statistics, available online at
https://www.osha.gov/dep/2015_enforcement_summary.html ................................. 7
Tr. of Hr’g on Mot. for Inj. at 5–7, 77–78 (Aug. 12, 2016) .......................................... 11
Tr. of Hr’g on Mot. for Inj. at 61 (Aug. 12, 2016) ........................................................ 12
www.stopbullying.org .................................................................................................. 15

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INTRODUCTION
Perhaps unable to find a law or command they find unambiguous, Defendants
now interpret the Court’s injunction so as to allow them to continue down the path
that the Court blocked them from taking. Defendants, as Article II agencies
accustomed to deference, demonstrate an artful inability to recognize an
unambiguous directive of an Article III court. While this case illustrates that the
nature of deference to executive agencies can breed a certain insouciance toward the
rule of law, the purpose of Article III courts is to resolve disputes and not engage in
perpetual tinkering. Indeed, Defendants’ motion demonstrates that accountability for
their unchecked mischief is something they are not fully willing to embrace.
If granted, Defendants’ motion (ECF No. 65) functionally vacates the Court’s
thorough and unambiguous injunction. Conveniently to their ends, Defendants
contend that the injunction “could be read to extend well beyond the appropriate
scope of relief.” ECF No. 65 at 1. But the injunction is neither ambiguous nor
burdensome. Appropriately, it is narrowly tailored as to geographic extent, parties,
and proscribed conduct so as to preserve the status quo until final disposition of this
case. ECF No. 58 at 37. The Court should deny Defendants’ motion.
I.

The Court Enjoined Defendants’ Rule, Not Merely a Few Documents
In a creative endeavor to avoid the Court’s injunction, Defendants suggest that

they should be able to argue their rule—that all intimate areas are open to everyone—
so long as they don’t expressly reference the guidances. 1 ECF No. 65 at 2, 4, 7–8. This
argument misapprehends both the problem that forms the basis for Plaintiffs’ request
for relief as well as the relief provided by the Court.
While Defendants implicitly assert that their various guidances are the
fundamental problem at issue, they are not. The rule at issue, because it was not
For the sake of clarity and simplicity, Plaintiffs employ the word “guidance” to refer to all of the
regulatory “dark matter” (guidances, memos, interpretations, etc.), both known and unknown, that
evidence the rule at issue in this matter.

1

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properly promulgated in accordance with the APA, possesses no clear or distinct form.
Like gravity, the rule may not be visible, but the evidence of its existence is
overwhelming. Thus, Defendants’ guidances are not the rule itself, as the actual rule
lurks somewhere beneath.
Defendants admit as much to the Court, in articulating that “the challenged
guidance documents simply announce the federal government’s interpretations of
Titles VII, IX, and applicable regulations,” ECF No. 40 at 29 (emphasis added), and
that “they merely explain what the defendant agencies understand,” id. at 30
(emphasis added). Plaintiffs agree that the Defendants’ guidances are best considered
evidences of the rule, but not the rule itself. ECF No. 52 at 8, 14 (discussing “the
documents that evidence [the rule]”).
Much of the evidence, of course, is in the enforcements of the rule across the
country. And the uniformity of these enforcements demonstrates that there is an
actual binding rule—that no matter the circumstances, individuals should be given
access to the intimate spaces that conform to their chosen “gender identity,” without
regard to the privacy, dignity, or safety needs of others. Thus, evidence abounds of
the rule’s existence as well as its finality in the minds and actions of Defendants.
Of course, the existence of unwritten rules that run afoul of the APA is hardly
new. In Phillips Petroleum Co. v. Johnson, 22 F.3d 616 (5th Cir. 1994), the Fifth
Circuit addressed an unpublished rule of the Department of Interior that changed
the procedure for determining oil and gas royalties. In Shell Offshore Inc. v. Babbitt,
238 F.3d 622, 629 (5th Cir. 2001), the Fifth Circuit addressed an unwritten
“alteration of an existing practice.” This why it is “the substance of what the [agency]
. . . has done which is decisive,” Milk Indus. Found. v. Glickman, 949 F. Supp. 882,
893–94 (D.D.C. 1996), and not the form in which that action has occurred. 2
2

See also, e.g., Mora-Meraz v. Thomas, 601 F.3d 933, 938 (9th Cir. 2010) (addressing a so-called

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Wherever a rule is unwritten, there is nonetheless documentary evidence of
the rule’s existence. However, it is not always the case that an agency fully
promulgates what looks like, smells like, and acts like a rule, while merely avoiding
notice and comment. Indeed, non-APA rulemaking appears in a multitude of forms—
some recognizable, others not—precisely because the APA was not followed.
By contending that the guidances themselves are the rule, instead of merely
evidence of the rule, Defendants obscure the nature of the injunction as well as the
line distinguishing permissible from impermissible behavior moving forward. Thus,
Defendants misapprehend the injunction when they say that “based on the explicit
terms of the Preliminary Injunction, it appears that Defendants are not prohibited
from enforcing . . . the underlying statute against Plaintiffs and their public
educational institutions, provided that they do not rely on the Guidelines.” ECF No.
65 at 18. If “enforcement” involves putting the sexes together in intimate areas, then
the injunction proscribes Defendants from enforcing Titles VII or IX to that end. If
“enforcement” involves, for example, the EEOC adjudicating a workplace claim of
racial discrimination, nothing about the injunction precludes Defendants from doing
their job in that regard.
II.

The Scope of the Injunction
The scope of the injunction is clear. It applies to intimate areas in both Title

VII and IX contexts and enjoins Defendants across the country.
A.

The Injunction Impacts Access to Intimate Areas

Plaintiffs’ application for preliminary injunction (ECF Nos. 11 & 52), and their

“twelve-month rule” which the Court acknowledged was a “specific unwritten rule.”); Stellas v.
Esperdy, 366 F.2d 266, 269 (2d Cir. 1966), vacated and remanded on other grounds, 388 U.S. 462 (1967)
(acknowledging that determinations on whether applicants qualify for investor visas may involve
“written or unwritten rules”); Lightfoot v. D.C., 339 F. Supp. 2d 78, 94 (D.D.C. 2004), clarified on denial
of reconsideration, 355 F. Supp. 2d 414 (D.D.C. 2005), and rev’d and remanded, 448 F.3d 392 (D.C.
Cir. 2006) (“This policy determination process—which Defendants are clearly undertaking when
setting out unwritten termination, suspension and modification procedures which affect Plaintiffs’
property interests—is clearly substantive rule-making.” (emphasis added)).
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Notice of Pending Litigation (ECF No. 64), turns on access to, and the expectations of
privacy in, intimate areas. This necessarily means that the injunction does not extend
to Defendants’ involvement in, for example, a Title VII dispute that does not involve
access to intimate areas. See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.,
No. 2:14-cv-13710, ECF No. 76 (“Opinion & Order”) (E.D. Mich. Aug. 18, 2016).
However, Defendants have a well-documented history of taking disputes that do not
involve intimate areas, and turning them into intimate area battles. This is seen most
clearly in the Oklahoma case, where DOJ decided to deeply explore access to intimate
areas, though it never raised that issue in its pleadings. See United States v.
Southeastern Okla. State Univ., No. 5:15-cv-324 (W.D. Okla.); ECF No. 64 at 3–6.
In any dispute, the complaint or pleadings contains only the initial allegations
of wrongdoing. Indeed, where a case oftentimes ends varies from where it began.
Thus, while Plaintiffs agree that the scope of the injunction regards only access to
intimate areas, Plaintiffs maintain well-founded concerns that Defendants are
nonetheless undeterred by the injunction in their quest to mix the sexes in intimate
areas. Accordingly, as Plaintiffs already indicated, as to any investigation, dispute,
or litigation that involves the interpretation of “sex” under Titles VII or IX,
Defendants should be prohibited from raising access to intimate areas as a material
aspect of the dispute, or otherwise participating in discovery, briefing, or
argumentation regarding access to intimate areas.
Moreover, the Court should further require Defendants to affirmatively
disavow in all matters not identified in their Notice of Pending Litigation (ECF No.
61) that access to intimate areas is at issue. If, as in the Oklahoma case, access to
intimate areas is raised only by a private litigant, Defendants should be precluded
from participating in discovery regarding, or otherwise advancing argument,
regarding access to intimate areas.

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B.

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Title VII, DOL, and OSHA

The focal point of the case sub judice is intimate area access under Titles IX
and VII. The injunction, the various filings discussing this discrete issue at length
(see, e.g., ECF Nos. 6, 11, 40, 52, 61 & 64), and the factual realities of what is involved
in this matter make clear that Title VII is a substantive part of the injunction.
Take, for example, the Plaintiffs, Harrold ISD and Heber-Overgaard Unified
School District. As the Court knows, schools are not merely institutions of education,
but also workplaces and subject to Title VII. Indeed, schools strive not only to provide
safe and reasonable educational environments for children, but also safe and
reasonable workplaces for their employees. See Exhibit P, ECF No. 11-2 at ¶ 5. The
evidence before the Court shows that, in many educational institutions, intimate
areas are accessed simultaneously by both students and teachers (employees). See,
e.g., id. at ¶ 6.
Even in educational institutions where students and faculty possess
designated facilities, it is unavoidable that students and teachers (or coaches) will
sometimes share the same facilities. See, e.g., Exhibit N, ECF No. 6-14 at 3 (“For
example, if a physical education teacher repeatedly made remarks about students’
bodies whenever students changed clothes in a locker room, that conduct would likely
create a hostile environment and be considered unlawful sexual harassment.”). This
type of student/teacher interaction can occur, for example, when football players and
their coaches share the same facilities at the football stadium, or when a separate
fieldhouse or athletic facility requires track athletes and their adult coaches to share
intimate facilities. Regardless of the particular circumstance afoot, the intimate
nature of education—where children and employee adults acting in loco parentis are
constantly together—means that Titles VII and IX and inextricably intertwined as to
the Court’s injunction. This is why all Defendants are proper parties and enjoined

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from using both Title VII and Title IX in a way contrary to the injunction. 3
In an effort to undermine the injunction, Defendants reference various
ministerial duties that EEOC must perform in receiving and processing Title VII
complaints by private individuals. ECF No. 65 at 22–23. In reading Defendants’
motion, one would think that the Court’s injunction has ground due process in the
employment discrimination context to a halt. 4 Defendants go too far.
Clearly, the EEOC’s performance of various ministerial duties is unimpeded
by the injunction. EEOC may receive private complaints, issue its notices, and gather
the necessary facts, as it always does. However, in cases alleging discrimination on
the basis of “sex,” and involving access to intimate areas, EEOC may not suggest,
conclude (via reasonable cause determinations or otherwise), or adjudicate that Title
VII requires employers to mix the sexes in intimate areas. This modest restriction on
EEOC’s enforcement powers, of course, does not impede the right of an individual
that brings a complaint to full due process. Regardless of the EEOC’s substantive
determinations, an individual that files a complaint will have a right to argue his/her
theory of the case and continue their litigation into federal court. But the injunction
is clear that EEOC does not get to substantively side with private litigants when
access to intimate areas is part of the equation—a reasonably narrow restriction for
a limited set of circumstances.
All of this application necessarily extends to Defendants, 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
Indeed, the relationship between Title VII and Title IX is so strong that courts routinely look to Title
VII case law for guidance in Title IX matters, and vice versa. See, e.g., Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 651 (1999). Thus, any ruling regarding Title IX functionally, if not directly, applies
to Title VII. Therefore, in any instance—Title VII or Title IX—where access to intimate areas is at
issue, Defendants are enjoined.
4 Defendants contend that “nonperformance of these actions by the EEOC could result in depriving
individuals of their right to pursue relief on their own behalf in Court.” ECF No. 65 at 28. This is
nonsense.
3

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Secretary of Labor for the Occupational Safety and Health Administration. As the
Court is aware, in 2015, OSHA published a “guide” for employers regarding restroom
access. OSHA’s so-called “guide” evidences the rule enjoined by the Court, as the
“guide” concludes 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.” Exhibit D, ECF No. 6-4. And OSHA
postures this “guide” as clearly reflecting an underlying, enforceable rule. It cites to
one of DOL’s own final rules as supportive, along with a CFR regarding “toilet
facilities,” as well as enforcements by EEOC. Id. at 4.
Furthermore, DOL and OSHA possess powerful enforcement mechanisms. 5
This regards public employers and their workers where there is an OSHA-approved
State Plan. Twenty-two states and territories, including several Plaintiffs, have such
plans. 6 In 2015, OSHA conducted 35,820 inspections and found 65,044 violations. 7
No matter why OSHA visited each of the 35,820 job sites in 2015, every single visit
provides it with an opportunity to find a new violation for its “Core principle”—that
“[a]ll employees, including transgender employees, should have access to restrooms
that correspond to their gender identity.” Exhibit D, ECF No. 6-4 at 1.
As Plaintiffs articulated from the outset, what is before the Court is a rule on
which all “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.” ECF No. 6 at 3. The rule at issue, though not
See, e.g., 29 U.S.C. §§ 657–59, 662.
Alaska, Arizona, California, Hawai’i, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming all have state plans that cover both private and public
sector workers. List available online at https://www.osha.gov/dcsp/osp/index.html.
7
See
OSHA’s
2015
Statistics,
available
online
at
https://www.osha.gov/dep/2015_enforcement_summary.html.
5
6

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formalized, is nonetheless being implemented and enforced by all Defendants. 8 To
succeed, Defendants’ regulatory shell game depends not only upon a clandestine rule,
but for the rule to become ubiquitous through the collective efforts of all Defendants.
It is, perhaps, by design that no single agency purports to assume ownership over it
such that every Defendant can always argue, as they do here, that they are not
responsible. But to enjoin only some Defendants, and not all, permits the rule to live
at the expense of the Court’s authority.
C.

“Transgender”

Neither Plaintiffs’ amended complaint (ECF No. 6), nor its application for
preliminary injunction (ECF Nos. 11 & 52), turns on whether an individual describes
themselves as “transgendered.” In fact, Plaintiffs do not employ the word as operative
in any of their filings. And in the injunction, the Court only mentions the term in
recognizing and reciting Defendants’ arguments. 9 The substance of the injunction
does not turn on whether one identifies themselves as “transgender.”
This, of course, is because the laws and regulations at issue are unambiguous
biological categories, as the Court recognized. Thus, as to any dispute or question
regarding intimate areas, any application of “sex” by Defendants that runs contrary
to the biologically-grounded nature of the term is enjoined. Because the laws and
regulations at issue are unambiguous, and cover every member of the human race
(whether male and female), they necessarily cover anyone that, for example,
identifies with a particular national origin, or identifies with a certain political party.
There is no need for the Court to digress into various additional categories.
Defendants’ invitation for the Court to “clarify” its injunction as to how it
The APA defines “rule” broadly, and what it or is not a rule cannot be evaded by giving it a different
name(s). Indeed, it is “the substance of what the [agency] . . . has done which is decisive.” Milk Indus.
Found. v. Glickman, 949 F. Supp. 882, 893–94 (D.D.C. 1996).
9 The subject matter of this litigation, as recognized by the Court, is “Defendants’ swift move to
supplant the traditional, biological meaning of sex with a definition based on gender identity through
the Guidelines,” ECF No. 58 at 37, and not on whether someone defines themselves as
“transgendered.”
8

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impacts those that define themselves as “transgender” should be acknowledged for
what it is—a surreptitious effort to get the Court to contrive an ambiguity in the
applicable laws and regulations. Indeed, this was Defendants’ formula for success
before the Fourth Circuit. That court, citing only to Defendants’ “dark matter,”
concluded that the applicable laws and regulations were ambiguous. G.G. ex rel.
Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 722–23 (4th Cir. 2016) (concluding
that the DOE has “consistently enforced” the rule since 2014 and that these
enforcement efforts are “in line with the existing guidances and regulations of a
number of federal agencies,” including OSHA and EEOC), stayed and mandate
recalled pending disposition of petition for cert., 136 S. Ct. 2442 (U.S. Aug. 3, 2016)
(No. 16A52), petition for cert. filed, (U.S. Aug. 29, 2016) (No. 16-273).
D.

Geography

Arguably the most audacious part of Defendants’ motion is their request that
the Court “confirm” that its injunction, which is “nationwide,” is not nationwide. ECF
No. 65 at 22–25. Defendants ask the Court to adopt their bad habit of rewriting terms
to mean something other than their plain, ordinary meaning. Here, Defendants ask
the Court to agree that “nationwide” means “plaintiff states.”
There at least two problems with Defendants’ cavalier approach. First,
Defendants misapprehend the Court’s admonition regarding “Plaintiffs and their
respective schools, school boards, and other public, educationally-based institutions.”
ECF No. 58 at 37. As Plaintiffs explained in their Notice of Pending Litigation (ECF
No. 64), this language is not temporally limited regarding when litigation began.
While the Court concerns itself with when certain litigation was initiated in other
matters, the language at issue (“Plaintiffs and their respective schools, school boards,
and other public, educationally-based institutions”) applies irrespective of when any
given litigation commenced. This language, thus, emphasizes the absence of a
temporal restriction regarding the Plaintiff States. It does not exist to transform the
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clear meaning of “nationwide” into “plaintiff states.”
Secondly, Defendants completely forget to whom the Court’s injunction is
directed—them. Defendants are federal administrators and agencies, with footings
in every state and territory. Discussing whether the injunction applies in “the Fifth
Circuit” or “plaintiff states” is a clever way to remove the focus of the Court’s relief
from the wrongdoers. But, as here, where Defendants are collectively and
systematically engaged in enforcing a pervasive and unlawful rule across the country,
an injunction that precludes Defendants from acting everywhere is quite clear. 10
III.

Nature of Future Advocacy by Defendants—What Can Defendants Do
From This Point Forward?
Defendants are correct that the injunction precludes them from advancing

arguments, or otherwise advocating guidance, legal positions, or otherwise, that
relate to or rely upon all of their “dark matter” regarding access to intimate areas
(regardless of whether that “dark matter” is specifically identified by Plaintiffs or the
Court). All such guidances suffer from the same legal flaw. Thus, it would be
nonsensical for the injunction to not apply to guidances unidentified by Plaintiffs (in
its pleadings or other filings) that rely upon the same substance or draw the same
conclusions enjoined by the Court.
Defendants nonetheless ask the Court to bless their continued mission to force
the sexes to share intimate areas, in particular through litigation. In this ruse,
Defendants intend to appropriate court dockets as the new publishers of its rule. Yet,
by permitting Defendants to broadcast their rule through court filings, Defendants
are able to circumvent the injunction. Indeed, by allowing Defendants to articulate
their rule in court briefs, or the filing of new Statements of Interest, Defendants can

Defendants’ additional concern about whether the “burden” of the Court’s injunction is ironic. An
injunction that applies “nationwide” carries with it the absence of burden. Defendants do not have to
engage in enforcement gymnastics or difficult mathematics to figure out where the Court’s prohibition
does and does not apply. Rather, Defendants are, quite simply, enjoined everywhere.
10

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subsequently publicize or circulate that new Statement of Interest to every public
school in the country. This allows Defendants to accomplish the same purpose they
sought to accomplish through their various pieces of “dark matter”—veiled threats of
the removal of Title IX-linked funds, which generally leads to DOE getting its way.
See, e.g., Exhibit J, ECF No. 6-10 at 8–9 nn. 9, 23; Tr. of Hr’g on Mot. for Inj. at 5–7,
77–78 (Aug. 12, 2016).
Thus, it is the rule itself, along with the evidence of it, which is enjoined.
Without the injunction of the rule itself, Defendants may republish their rule and
continue down the same path, relegating this Court to a bump in the road rather than
a judicial check on executive power. The Court’s judicial power is reduced to nothing
if it can only enjoin a certain document which, as Defendants now believe, can be
reissued the next day without running afoul of the Court’s directive.
To be sure, the injunction does not preclude Defendants from engaging in
legitimate judicial advocacy in certain to-be-determined limited fora. See ECF No. 64;
n.12, infra. However, as made clear by the rules, arguments to a tribunal must be
“warranted by existing law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11. As the Court
has found, when it comes to access to intimate areas, individuals may be separated
based on “the biological and anatomical differences between male and female
students as determined at their birth.” ECF No. 58 at 31. What the term “sex” means
in Titles VII and IX is clear, as the Court found. The evidence of the meaning of “sex”
as a biologically-based category is overwhelming, ECF No. 6 at ¶¶ 23–37, and not
even something Defendants contest. ECF No. 40.
If Defendants are able to craft an appropriate textual argument about the
meaning of “sex” at the time that Titles VII or IX were enacted, or locate legislative
history that supports an alternate meaning, they should be encouraged to present
such arguments in ongoing litigation that the Court is expected to determine is not
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within the purview of its injunction. But to allow Defendants carte blanche to
continue to argue their rule in other locations, and essentially ignore what this Court
did, would functionally rescind the Court’s injunction.
IV.

Future Use of the Enjoined Guidances—What Can Defendants Use
From This Point Forward?
Unlike the prior section regarding what Defendants may do, this section

addresses how the guidances already produced may be employed, if at all, from this
point forward. Because the various guidances are stained with the taint of their
illegality, no aspect of them should be permitted any use (outside of perhaps historical
storage or reference). That any portion or section of the guidances may be lawful does
not remove them from the ambit of the Court’s ruling or otherwise authorize their
future use. Under the injunction, Defendants may not use, create, proliferate, or
otherwise distribute any guidance or writing that prohibits separating the sexes in
intimate areas. 11
The Court found that the Defendants’ rule is “final agency action under the
APA” and that the Defendants do not dispute that the rule is a “consummation” of
the agencies’ decision-making process. Tr. of Hr’g on Mot. for Inj. at 61 (Aug. 12,
2016); Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 755–56 (5th Cir. 2011)
(citing Her Majesty the Queen in Right of Ontario v. EPA, 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 . . . .”)). Id. at 17. Thus, all of the guidances at issue embody a rule that,
now enjoined, forever taints them.
Defendants note that many of the guidances that describe the rule mention
other areas of discrimination, such as “race, national origin, or disability . . . distinct
An exception may exist if the Court permits Defendants to continue to advocate their rule in a
handful of cases, already identified, where Defendants’ argument was well-established with the
federal court at the time of this Court’s injunction on Aug. 21, 2016.
11

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from the subject of Plaintiffs’ request for relief.” ECF No. 65 at 12. Defendants claim
that the injunction thus “. . . could be read to limit Defendants’ ability to enforce and
interpret anti-discrimination statutes . . . ” Id. But there is nothing in the injunction
substantiating this concern. The injunction does not prevent Defendants from relying
on statutes or other actual law or validly adopted regulations to undertake lawful
anti-discrimination enforcement actions.
Because the injunction does not “disrupt” these other laws, the Court was
correct in enjoining the guidances in their entirety. Cent. & S. W. Servs., Inc. v. EPA,
220 F.3d 683, 692 (5th Cir. 2000) (explaining that vacating a rule is appropriate
where the consequences are not “disruptive.”). It is not the duty of the Court to rewrite
the various administrative documents in the record so that they comply with Titles
VII and IX, and the applicable regulations. Virginia v. Am. Booksellers Ass’n, Inc.,
484 U.S. 383, 397 (1988) (holding that the entirety of an unconstitutional law fails
unless it is “readily susceptible” to a narrowing construction); see also United States
v. Nat’l Treasury Emps. Union, 513 U.S. 454, 479 (1995) (citing the “obligation to
avoid judicial legislation” and declining to modify statute).
Under the APA, courts are not charged with engaging in remedial measures
like reformation or redaction. Indeed, were findings under the APA to be applied in
piecemeal fashion, the APA would hardly be a deterrent to improper agency action.
If courts only struck down improper sentences or paragraphs within agency
guidances, there would be no incentive for agencies to comply with the APA and enact
wholly proper regulations, interpretations, and the like. To the contrary, agencies
would be imbued with the desire to continually “enact” that which is proper with that
which is not, knowing that a discerning court would only strike down the improper
part and functionally allow the entire guidance to survive.
Yet the Supreme Court has repeatedly admonished against relying on judicial
intervention in this manner. Ayotte v. Planned Parenthood of N. New England, 546
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U.S. 320, 330 (2006) (providing that “[i]t would certainly be dangerous if the
legislature could set a net large enough to catch all possible offenders, and leave it to
the courts to step inside” to announce to whom the statute may be applied.”) (quoting
United States v. Reese, 92 U.S. 214, 221 (1875)); see also Osborne v. Ohio, 495 U.S.
103, 121 (1990) (judicial rewriting of statutes would derogate Congress’ “incentive to
draft a narrowly tailored law in the first place”). The Court should not indulge
Defendants’ invitation to do their work for them.
Moreover, under Defendants’ view of how its guidances should be treated,
there is no basis upon which individuals and entities would know what elements of
the guidances are enjoined or improper. Only the citizen distinctly aware of the
injunction, imbued with the legal training necessary to understand the parameters,
and who takes the time to compare the injunction against the voluminous guidances,
could potentially discern the parts of the “dark matter” that are improper versus
those that are not. This, of course, assumes that separating the proper from the
improper is an easy or clear exercise, devoid of confusion or tough choices.
Missing from Defendants’ argument is the representation of any actual need
for its enjoined guidances to survive for the legitimate purposes of Defendants’
enforcement authority. Defendants’ argument appears to presume that, apart from
the survival of the guidances enjoined by the Court, there is no basis upon which
anyone would know that invidious discrimination on the basis of race is unlawful, or
that violence against students is improper. But the Court knows this to be untrue.
The volumes of material produced by Defendants that address these, and other topics,
are virtually unlimited. 12 Moreover, since Defendants’ preferred method of
12 Defendants are, indeed, experts at producing “dark matter.” For example, Defendants contend that
a certain guidance enjoined by the Court (Plaintiffs’ Exhibit A, ECF No. 6-1) also “concerns harassment
and bullying based on race, national origin, and disability.” ECF No. 65 at 14. However, DOE has
released volumes of other “dark matter” that addresses the topic. A search for “bullying” on DOE’s
website (www.ed.gov) brings up no less than a dozen documents, in addition to Exhibit A, that address

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rulemaking and publication avoids the inconvenience of notice, public comment, and
the timelines associated therewith, reconstituting and releasing the permissible
substance of any enjoined guidance, if Defendants so desired, should be easy.
Even if there were a demonstrable need for parts of the guidances to survive,
the only way to attempt to move forward along those lines begins with redaction. The
Court would need to engage in the laborious exercise of identifying those parts of the
guidances that must be blacked out before continued usage. 13 Similarly, all enjoined
guidances would need to have a new cover page added to each item that explains the
nature of the guidance’s taint, and why certain matter is blacked out.
Even if the Court were inclined to engage in piecemeal redactions and
oversight of the circumstantial use of the enjoined “dark matter,” it is impossible to
redact the guidances already distributed. Undoubtedly, copies of now improper
guidances exist on countless computers, endless e-mail strings, and in hard copy
forms in various files across the country. There is no way, practical or otherwise, for
the Court to reach its editorial hand into those places and properly revise the
guidances, or even notify the owners of those guidances about what is or is not. Thus,
while the Court can control what “dark matter” may look like moving forward,
properly redacting the endless distribution of unredacted copies already distributed
isn’t realistically possible.
Therefore, the Court should not entertain Defendants clever efforts to breathe

bullying. DOE also links to a bullying website, listed as www.bullyinginfo.org, which links to
www.stopbullying.org. The bottom line is this—that over several years, Defendants have released
countless publications which more that educate the public, and others, on everything that may be
properly discussed or covered within the enjoined guidances. Defendants cannot make a credible case
that there is any actual need for the enjoined guidances, or parts thereof, to survive. The request to
permit the use of some of the guidances is nothing more than a ploy to circumvent the injunction.
13 This raises an additional problem in that Defendants would need to first identify the universe of the
“dark matter” to be redacted. Plaintiffs identify many of the most significant documents in their
Amended Complaint, ECF No. 6, but it will likely take Defendants some time to fully marshal every
memo, press release, web page, blog post, guidance, and the like that evidences the rule, and then
present them to the Court in a cogent fashion for redaction.
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post-injunctive life into its stained guidances. Indeed, the Court’s adjudication serves
as an enduring blemish on the guidances akin to a scarlet letter.
Conclusion
Defendants’ propensity to interpret what they read in the way that they want
to read it is well-established. The Court should resist this latest attempt to have its
injunction interpreted by Defendants in a way that avoids the Court’s judicial
authority, is self-serving only to Defendants’ policy agenda regarding intimate areas
agenda, and contravenes the clear federal law that the Court’s order is designed to
uphold.

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Respectfully submitted this the 19th day of September, 2016,
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

ANDREW LEONIE
Associate Deputy Attorney General for the
Office of Special Litigation

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

AUSTIN R. NIMOCKS
Associate Deputy Attorney General for the
Office of Special Litigation
/s/ Austin R. Nimocks
AUSTIN R. NIMOCKS
Texas Bar No. 24002695
austin.nimocks@texasattorneygeneral.gov
MICHAEL TOTH
Senior Counsel for the Office of Special
Litigation
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

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CERTIFICATE OF SERVICE
I, Austin R. Nimocks, hereby certify that on this the 19th day of September,
2016, 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

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