The Board of Education for the Highland Local School District (“Highland”) filed a brief in the U.S. Court of Appeals for the Sixth Circuit, asking the court to reverse a lower court’s decision in it’s lawsuit against the U.S. Department of Education.  The brief also asks the court to deny a motion for preliminary injunction from third-party plaintiff Jane Doe, a male student in the Highland Local School District seeking access to sex-segregated facilities reserved for female students.
On September 26, 2016 U.S. District Court Judge Algenon L. Marbley granted a preliminary injunction to Jane Doe stating, “The Court orders School District officials to treat Jane Doe as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom at Highland Elementary School.”
In its brief filed April 19, Highland asserts, “This appeal concerns the efforts of Appellants to ensure a safe and secure learning environment for Intervenor Third-Party Plaintiff-Appellee Jane Doe, a minor, by and through her legal guardians Joyce and John Doe (“Doe”), as well as all the other students enrolled in Highland, and the competing efforts of Doe and other parties to improperly expand both Title IX and the Equal Protection Clause to encompass the concept of gender identity in violation of the plain language of the statute, congressional intent, and existing federal case law.” [emphasis added]

Highland asserts that the lower court erred in granting Doe a preliminary injunction on the basis that Doe cannot make a clear showing as to any of the “factors on which a movant must make a clear showing in order to obtain a preliminary injunction.”  The first of those factors is “whether the movant has a strong likelihood of success on the merits.”  Highland explains that “Doe does not have a strong likelihood of success on the merits because Title IX and its implementing regulations simply do not encompass the concept of gender identity. The Southern District improperly applied the law in holding otherwise.”
Highland argues that the meaning of “sex” under Title IX is not ambiguous, stating, “In sum, the plain language of Title IX and its implementing regulations are far from silent as the Southern District erroneously determined but, rather, reveal two certainties about the statute’s use of the term “sex:” (1) “sex” is a trait for which there are only two descriptors, male or female, and (2) physiology and reproduction determine whether a person’s “sex” is male or female.”
“Even assuming the term sex in Title IX is ambiguous, which it is not, the Federal Defendants’ guidance documents are not entitled to any weight as the Federal Defendants “withdrew the statements of policy and guidance reflected in” these guidance documents on February 22, 2017.”
Highland Local School District v. U.S. Dept. of Educ. — April 19, 2017