IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT...

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

STATE OF TEXAS, ET AL., §

§

Plaintiffs, §

§

V. § CIVIL ACTION NO. 7:16-CV-00054-O

§

UNITED STATES OF AMERICA, ET AL., §

§

Defendants. §

PLAINTIFFS’ SUPPLEMENTAL BRIEFING

REGARDING THE COURT’S PRELIMINARY INJUNCTION

Case 7:16-cv-00054-O Document 90 Filed 10/24/16 Page 1 of 36 PageID 1587

Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................... ii

INTRODUCTION ................................................................................................................ 1

ARGUMENT ...................................................................................................................... 2

I. The Nation’s Laws and Culture Protect Privacy, Safety, and Dignity in

Intimate Areas. ................................................................................................. 2

A. Defendants’ Approach Eliminates Privacy in Intimate Areas. ......................... 2

B. American Law and Culture Always Has Respected Bodily Privacy in

Intimate Areas. ............................................................................................................ 3

II. Congress and the Courts Long Ago Codified Privacy and Dignity in Federal

Law; Defendants Seek to Rewrite Those Laws Through “Guidelines” .......... 5

A. Title VII. ......................................................................................................................... 7

1. Hostile Work Environments. ........................................................................ 7

2. Intimate Areas. .............................................................................................. 8

3. Price Waterhouse. ........................................................................................ 11

4. Other Law. ................................................................................................... 12

B. Title IX. ........................................................................................................................ 12

III. The Injunction Implicates DOL and OSHA Activity. ................................... 13

IV. Defendants’ “Guidelines” Are Enjoined in Total ........................................... 17

A. The Principles of Severability Are Inapplicable Here. ...................................... 18

B. Severing the “Guidelines” Will Create a Significant Burden on the Court,

the Parties, and the Public. ..................................................................................... 21

CONCLUSION ................................................................................................................. 23

CERTIFICATE OF SERVICE .............................................................................................. 26


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page ii

TABLE OF AUTHORITIES

Cases

Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) .................................................................................................. 19

Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) .................................................................................... 19

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

548 U.S. 291 (2006) .................................................................................................... 7

Ass’n of Private Sector Colls. & Univs. v. Duncan,

110 F. Supp. 3d 176 (D.D.C. 2015) .......................................................................... 19

Ballard v. United States,

329 U.S. 187 (1946) .................................................................................................... 3

Barbetta v. Chemlawn Serv. Corp.,

669 F. Supp. 569 (W.D.N.Y. 1987) ............................................................................. 8

Bell Atl. Tel. Cos. v. FCC,

24 F.3d 1441 (D.C. Cir. 1994) .................................................................................. 20

Brown v. Henderson,

257 F.3d 246 (2d Cir. 2001) ........................................................................................ 8

Buckley v. Valeo,

424 U.S. 1 (1976) ...................................................................................................... 19

Canedy v. Boardman,

16 F.3d 183 (7th Cir. 1994) ........................................................................................ 4

Carlson v. C.H. Robinson Worldwide, Inc.,

No. Civ.02-3780 JNE/JGL, 2005 WL 758602 (D. Minn. Mar. 31, 2005) .................. 8

Cent. & S. W. Servs., Inc. v. EPA,

220 F.3d 683 (5th Cir. 2000) .................................................................................... 18

Champlin Refining Co. v. Corp. Comm’n of Okla.,

286 U.S. 210 (1932) .................................................................................................. 19

Conservation Law Found. v. Pritzker,

37 F. Supp. 3d 254 (D.D.C.) ..................................................................................... 19


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page iii

Consumer Energy Council of Am. v. Fed. Energy Regulatory Comm’n,

673 F.2d 425 (D.C. Cir. 1982) .................................................................................. 19

Crihfield v. Monsanto Co.,

844 F. Supp. 371 (S.D. Ohio 1994)............................................................................. 8

Crowell v. Benson,

285 U.S. 22 (1932) .................................................................................................... 21

Davis Cty. Solid Waste Mgmt. v. EPA,

108 F.3d 1454 (D.C. Cir. 1997) ................................................................................ 20

Davis v. Monroe Cty. Bd. of Educ.,

526 U.S. 629 (1999) .................................................................................................. 12

Doe ex rel. Doe v. Dallas Indep. Sch. Dist.,

153 F.3d 211 (5th Cir.1998) ..................................................................................... 12

Doe v. Sabine Par. Sch. Bd.,

24 F. Supp. 2d 655 (W.D. La. 1998) ................................................................... 12–13

Earth Island Inst. v. Pengilly,

376 F. Supp. 2d 994 (E.D. Cal.) ............................................................................... 19

Earth Island Inst. v. Ruthenbeck,

2005 WL 5280466 (E.D. Cal. Sept. 20, 2005) .................................................... 19–20

Earth Island Inst. v. Ruthenbeck,

490 F.3d 687 (9th Cir. 2007) .................................................................................... 20

EEOC v. Boh Bros. Constr. Co., L.L.C.,

731 F.3d 444 (5th Cir. 2013) .................................................................................... 10

EEOC v. Int’l Profit Assoc., Inc.,

654 F. Supp. 2d 767 (N.D. Ill. 2009) ........................................................................ 13

EEOC v. Rock-Tenn Servs. Co.,

901 F. Supp. 2d 810 (N.D. Tex. 2012) ........................................................................ 8

Etsitty v. Utah Transit Auth.,

502 F.3d 1215 (10th Cir. 2007) ................................................................................ 11


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page iv

Faulkner v. Jones,

10 F.3d 226 (4th Cir. 1993) ........................................................................................ 3

FEC v. NRA Political Victory Fund,

6 F.3d 821 (D.C. Cir. 1993) ...................................................................................... 19

Ferguson v. Skrupa,

372 U.S. 726 (1963) .................................................................................................. 11

Franklin v. Gwinnett Cty. Pub. Schs.,

503 U.S. 60 (1992) .................................................................................................... 12

G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.,

822 F.3d 709 (4th Cir.) ......................................................................................... 4, 11

Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) .................................................................................................... 7

Glenn v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ................................................................................ 10

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993) ...................................................................................................... 7

Her Majesty the Queen in Right of Ontario v. EPA,

912 F.2d 1525 (D.C. Cir. 1990) ................................................................................ 17

Hockman v. Westward Commc'ns, LLC,

407 F.3d 317 (5th Cir. 2004) .................................................................................. 7, 8

Hunter v. United Parcel Serv., Inc.,

697 F.3d 697 (8th Cir. 2012) .................................................................................... 10

J.B. ex rel Bell v. Mead Sch. Dist. No. 354,

2010 WL 5173164 (E.D. Wash. Dec. 10, 2010) ........................................................ 13

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) .................................................................................................... 7

Jameson v. Donahoe,

EEOC Decision 0120130992, 2013 WL 2368729 (May 21, 2013) ........................... 10

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) .................................................................................................. 19


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page v

Kruger v. Securitas Sec. Servs.,

No. 5:04-CV-91, 2005 WL 2417658 (W.D. Mich. Sept. 30, 2005) ............................. 8

Lee v. Downs,

641 F.2d 1117 (4th Cir. 1981) .................................................................................... 4

Luminant Generation Co. LLC v. EPA,

714 F.3d 841 (5th Cir. 2013) .................................................................................... 19

Lusardi v. McHugh,

EEOC Decision No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015) .................. 2, 11

Macy v. Holder,

EEOC Decision 0120120821, 2012 WL 1435995 (Apr. 20, 2012) ........................... 10

Melgarejo v. 24 Hour Prof’l Janitorial Servs.,

No. 3:07-CV-1847-B, 2008 WL 958203 (N.D. Tex. Apr. 8, 2008) .............................. 8

Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57 (1986) ............................................................................................ 7, 8, 12

Nat’l Ass’n of Mfrs. v. NLRB,

717 F.3d 947, 963–64 (D.C. Cir. 2013) .................................................................... 19

Nat’l Pork Producers Council v. EPA,

635 F.3d 738 (5th Cir. 2011) .................................................................................... 17

Nebraska v. United States,

No. 4:16-cv-3117 (D. Neb.) (filed July 8, 2016) ....................................................... 17

New York v. United States,

505 U.S. 144 (1992) .................................................................................................. 19

North Carolina v. FERC,

730 F.2d 790 (D.C. Cir. 1984) .................................................................................. 20

Onodera v. Kuhio Motors, Inc.,

No. 13–00044 DKW–RLP, 2014 WL 1031039 (D. Haw. Mar. 13, 2014) .................. 9

Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1 (1981) ........................................................................................................ 7


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page vi

Philip Morris USA, Inc. v. FDA,

2016 WL 4378970 (D.D.C. Aug. 16, 2016) ............................................................... 20

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) .................................................................................................. 11

Process Gas Consumers Grp. v. Consumer Energy Council of Am.,

463 U.S. 1216 (1983) ................................................................................................ 19

Rosa v. Park W. Bank & Trust Co.,

214 F.3d 213 (1st Cir. 2000) ..................................................................................... 10

Rosales v. City of San Antonio,

No. SA-00-CA-0144, 2001 WL 1168797 (W.D. Tex. July 13, 2001) .......................... 8

Rumble v. Fairview Health Servs.,

No. 14–cv–2037 (SRN/FLN), 2015 WL 1197415 (D. Minn. Mar. 16, 2015) ........... 10

Sanchez v. City of Miami Beach,

720 F. Supp. 974 (S.D. Fla. 1989) .............................................................................. 8

Schwenk v. Hartford,

204 F.3d 1187 (9th Cir. 2000) .................................................................................. 10

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004) .................................................................................... 10

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) .................................................................................................. 20

Texas v. United States,

No. 7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) ....................... 22

Torgerson v. City of Rochester,

643 F.3d 1031 (8th Cir. 2011) .................................................................................... 8

United States v. Booker,

543 U.S. 220 (2005) .................................................................................................. 19

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) .................................................................................................. 18

United States v. Rainbow Family,

695 F. Supp. 294 (E.D. Tex. 1988) ........................................................................... 20


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page vii

United States v. Virginia,

518 U.S. 515 (1996) .............................................................................................. 3, 11

Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383 (1988) .................................................................................................. 18

Waffenschmidt v. MacKay,

763 F.2d 711 (5th Cir. 1985) .................................................................................... 22

Waltman v. Int’l Paper Co.,

875 F.2d 468 (5th Cir. 1989) ...................................................................................... 8

Wedow v. City of Kansas City,

442 F.3d 661 (8th Cir. 2006) ................................................................................ 9, 10

Williams v. Mo. Dep’t of Mental Health,

407 F.3d 972 (8th Cir. 2005) .................................................................................. 7–8

York v. Story,

324 F.2d 450 (9th Cir. 1963) ...................................................................................... 4

Statutes

20 U.S.C. § 1686 ..................................................................................................... 13, 16

29 U.S.C. § 207 ......................................................................................................... 4, 15

29 U.S.C. § 216 ............................................................................................................... 4

29 U.S.C. § 651 ............................................................................................................. 14

29 U.S.C. § 653 ............................................................................................................. 17

29 U.S.C.A. § 655 ......................................................................................................... 14

Occupational Health and Safety Act of 1970 (“OSH Act”), Pub. L. No. 91-596, 84

Stat. 1590.................................................................................................................... 1

Regulations

28 C.F.R. § 54.410 .................................................................................................. 13, 16

29 C.F.R. § 1910.141 .............................................................................................. 14, 15

34 C.F.R. §§ 106.32–34 .................................................................................... 13, 16, 22


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page viii

Other Authorities

2016–2017 STATE OF TENN. BUDGET, COMPARISON OF AUTHORIZED POSITIONS,

STATE AGENCIES & HIGHER EDUC. ......................................................................... 5–6

ARIZ. OFFICE OF ECONOMIC OPPORTUNITY, MONTHLY EMPLOYMENT REPORT .............. 5

ARIZ. OFFICE OF EMPLOYMENT & POPULATION STATS., CURRENT EMPLOYMENT

STATS. DATA ................................................................................................................ 5

Barbara A. Brown, et al., The Equal Rights Amendment: A Constitutional

Basis for Equal Rights for Women, 80 YALE L.J. 871 (1971) ................................ 4–5

Br. Amicus Curiae Women’s Liberation Front Supp. Pet’r, Gloucester Cty.

Sch. Bd. v. G.G. ex rel. Grimm, No. 16-273, 2016 WL 5673283 (U.S.

Sept. 27, 2016) ............................................................................................................ 3

Brian E. Berwick & Carol Oppenheimer, Marriage, Pregnancy, and the

Right to Go to School, 50 TEX. L. REV. 1196 (1972) ................................................... 5

Charles A. Sullivan, et al., Federal Statutory Law of Employment

Discrimination (1980) .............................................................................................. 12

LA. DEP’T OF STATE CIVIL SERV. REPORT ON STATE EMP’T (Oct. 14, 2016) .................... 6

LA. SCH. EMPS.’ RET. SYS., FIN. STATEMENT AUDIT FOR THE YEARS ENDED

JUNE 30, 2016, AND 2015 ............................................................................................ 6

Letter from Thomas Galassi, Director, Directorate of Enforcement Programs,

OSHA, to John P. Gause, Comm’n Council, Me. Human Rights Comm’n

(Apr. 16, 2013) .......................................................................................................... 15

Mack A. Player, Employment Discrimination Law (1988) ........................................ 12

Margaret C. Jasper, Employment Discrimination Law Under Title VII

(2d ed., 2008) ............................................................................................................ 12

Mem. from John B. Miles, Director, Directorate of Compliance Programs,

OSHA to Reg’l Adm’rs, et al. (Apr. 6, 1998) ................................................ 13–14, 15

MUN. EMPS. RET. SYS. OF LA., AUDIT REPORT (June 30, 2015 & 2014) ......................... 6

Statement of Interest of the United States, G.G. ex rel. Grimm v. Gloucester

Cty. Sch. Bd., Case 4:15-cv-00054, ECF No. 28 (filed June 29, 2015) ................. 2–3


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page ix

TEACHERS’ RET. SYS. OF LA., 2014–2015 COMPREHENSIVE ANNUAL FIN.

REPORT ........................................................................................................................ 6

U.S. CENSUS BUREAU, STATE AND LOCAL GOVERNMENT EMPLOYMENT AND

PAYROLL DATA: MARCH 2014, 2014 ANNUAL SURVEY OF PUBLIC EMPLOYMENT

& PAYROLL (released Jan. 8, 2016) ............................................................................ 5

U.S. COMM’N ON CIVIL RIGHTS, Sex Bias in the U.S. Code (1977) ................................ 4

U.S. Dep’t of Labor, OSHA, Office of State Programs, FAQs .................................... 17

U.S. Dep’t of Labor, Wage & Hour Div., FAQs – Break Time for Nursing Mothers .. 4

U.S. Dep’t of Labor, Table of OSHA-Approved State Plans: Basic Facts and

Information ............................................................................................................... 16


Plaintiffs’ Supplemental Briefing Regarding the Court’s Preliminary Injunction Page 1

INTRODUCTION

Every day, Americans engage in a routine appurtenant to their pursuit of

happiness. Adults and children alike arise in the morning, prepare themselves, and

go to their workplaces. Children attend school, and adults work at a jobsite.

Whether we go to a schoolhouse, or a jobsite, or both, woven into our communal

fabric is an enduring and basic recognition of the immutable differences between the

sexes. Those differences give rise to a jealously guarded principle regarding the

inherent privacy, safety, and dignity that every person has in his or her body and the

exposure thereof. And to honor the significance of this interest, we affirm in this case

that privacy, safety, and dignity are protected within intimate facilities.

As our society achieved greater levels of sexual equality, and particularly

opportunity for women, our legal system guaranteed that greater opportunity did not

come at the expense of the innate dignity of women or their bodies. Titles VII and IX

both gave women greater opportunity and codified the enduring principles regarding

privacy, safety, and dignity in intimate areas. The same is true regarding the

Occupational Health and Safety Act of 1970 (“OSH Act”), Pub. L. No. 91-596, 84 Stat.

1590 (codified at 29 U.S.C. § 651 et seq.).

Title IX codified the privacy, safety, and dignity principles not just in

congressional text, but in many of its implementing regulations. The courts

announced these principles in Title VII. But irrespective of the sources, these

principles exist in Title VII, Title IX, and OSH Act, and propel forward the

longstanding principles undergirding dignity, safety, and privacy of every human,

particularly within intimate areas.

Title VII, the OSH Act, DOL, and OSHA are properly within the ambit of the

Court’s injunction. Employees are entitled to no less dignity, safety, and privacy than

students, and the law protects the intimate areas that they use from Defendants’

unlawful “Guidelines.” The Court should deny Defendants’ Motion to Exclude.



ARGUMENT

I. The Nation’s Laws and Culture Protect Privacy, Safety, and Dignity

in Intimate Areas.

It is remarkable that Defendants and their legal position has brough us to this:

requiring Plaintiffs to advocate a most basic life principle—that human beings have

an enduring privacy, safety, and dignity interest within intimate areas. Contrary to

Defendants’ revolutionary position, the right to privacy, safety, and dignity in

intimate areas is well-established, judicially recognized, and reasonable.

A. Defendants’ Approach Eliminates Privacy, Safety, and Dignity

in Intimate Areas.

Mixing the sexes in intimate areas unquestionably brings to the fore questions

of privacy, safety, and dignity, yet Defendants choose to ignore this fact in both their

“guidances,” and their sole adjudication on the issue. Lusardi v. McHugh, EEOC

Decision No. 0120133395, 2015 WL 1607756, at *1 (Apr. 1, 2015). And when

Defendants actually addressed how their new rule impacted the privacy, safety, and

dignity of others, they revealed their true position: privacy concerns regarding

intimate areas and bodily functions are frivolous. In their view,

[a]lthough certain parents and community members may object to

students sharing a common use restroom with transgender students,

any recognition of this discomfort as a basis for discriminating would

undermine the public interest. It is axiomatic that a school district

cannot justify sex discrimination by asserting that it acted upon a

“desire to accommodate other people’s prejudices or discomfort.” Macy,

2012 WL 1435995, at *10 and n.15. As the EEOC stated in Lusardi,

“[allowing the preferences of [others] to determine whether sex

discrimination is valid reinforces the very stereotypes and

prejudices”the law prohibits. Lusardi, EEOC Decision No. 0120133395

at 10; see also “Directive: Job Corps Program Instruction Notice No. 14-

31,” Dept. of Labor Job Corps at 4 (“[M]ost courts have concluded that

an entity’s desire to cater to the perceived biases of its customers,

employees, or other third parties is not a defense for unlawful

discrimination. The same principle applies to discrimination against

transgender persons.”); cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984)

(“The Constitution cannot control such prejudices but neither can it

tolerate them. Private biases may be outside the reach of the law, but



the law cannot, directly or indirectly, give them effect.”); Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“mere negative attitudes,

or fear . . . are not permissible bases for” government action).

Statement of Interest of the United States, G.G. ex rel. Grimm v. Gloucester Cty. Sch.

Bd., Case 4:15-cv-00054, ECF No. 28 at 21–22 (filed June 29, 2015). Thus, Defendants

consider anyone’s “discomfort” about sharing intimate spaces with the opposite sex,

or exposing their naked body to the opposite sex, or engaging in certain bodily

functions in the presence of the opposite sex to be “discriminat[ory],” “prejudice[d],” a

mere “preference[ ],” and a trivial “private bias[ ].” Stated another way, Defendants

“contemptuously dismiss[ ] the physical protections guaranteed by Title IX as blind

prejudices. . . . Women, in short, should just get over it.” Br. Amicus Curiae Women’s

Liberation Front Supp. Pet’r, Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, No. 16-

273, 2016 WL 5673283, at *16 (U.S. Sept. 27, 2016).

B. American Law and Culture Respects Bodily Privacy, Safety, and

Dignity in Intimate Areas.

Defendants’ disposition runs contrary to humanity’s respect for privacy, safety,

and dignity in the context of intimate areas and bodily functions. But since the Court

has acknowledged the legitimacy of concerns regarding “personal privacy,” ECF No.

58 at 1, it may be sufficient to aver that Plaintiffs’ disposition is entirely different

than that of Defendants. Unlike Defendants’ position, Plaintiffs’ view is supported by

historical writings, case law, common sense, and an appreciation that “the two sexes

are not fungible.” Ballard v. United States, 329 U.S. 187, 193 (1946).

Here, “society’s undisputed approval of separate public rest rooms for men and

women based on privacy concerns” must prevail. Faulkner v. Jones, 10 F.3d 226, 232

(4th Cir. 1993). The Supreme Court has been clear that this interest is significant

and legitimate. United States v. Virginia, 518 U.S. 515, 550 n.19 (1996). Yet,

Defendants’ position “overrules custom, culture, and the very demands inherent in

human nature for privacy and safety, which the separation of such facilities is



designed to protect.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 731

(4th Cir.) (Niemeyer, J., dissenting), recalling mandate & issuing stay, 136 S. Ct. 2442

(2016), petition for cert. filed, (U.S. Aug. 29, 2016) (No. 16-273). These demands have

been labeled “the personal privacy principle.” U.S. COMM’N ON CIVIL RIGHTS, Sex Bias

in the U.S. Code 216 (1977). They are foundational and ubiquitous.

Indeed, when Congress passed the Affordable Care Act (“ACA”), it expanded

the realm of intimate areas outside of traditional intimate areas. The ACA amended

the Fair Labor Standards Act to require certain employers (those with 50 or more

employees) to provide a private room, “other than a bathroom,” where nursing

mothers may express breast milk. 29 U.S.C. § 207(r)(1)(B). According to DOL, the

private space “cannot be a bathroom, and it must be shielded from view and free from

instrusion by coworkers or the public.” U.S. Dep’t of Labor, Wage & Hour Div., FAQs

– Break Time for Nursing Mothers, available at https://

www.dol.gov/whd/nursingmothers/faqbtnm.htm. Employers who violate § 207(r) may

be liable for damages to the employee. 29 U.S.C. § 216(b). Thus, from a congressional

viewpoint, the law is expanding, not contracting the realm of intimate areas.

Plaintiffs agree that “[w]e cannot conceive of a more basic subject of privacy

than the naked body. The desire to shield one’s unclothed figured [sic] from view of

strangers, and particularly strangers of the opposite sex, is impelled by elementary

self-respect and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963).

“Most people, however, have a special sense of privacy in their genitals, and

involuntary exposure of them in the presence of people of the other sex may be

especially demeaning and humiliating.” Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.

1981). Indeed, “all forced observations or inspections of the naked body implicate a

privacy concern . . . .” Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994). See also,

e.g., Barbara A. Brown, et al., The Equal Rights Amendment: A Constitutional Basis

for Equal Rights for Women, 80 YALE L.J. 871, 901 (1971) (discussing the “separation



of the sexes in public rest rooms”); Brian E. Berwick & Carol Oppenheimer, Marriage,

Pregnancy, and the Right to Go to School, 50 TEX. L. REV. 1196, 1218 n.116 (1972)

(concluding that restrictions on accessing bathrooms and changing areas are a

commonsense “response to our society’s concern for privacy and modesty.”).

II. Congress and the Courts Long Ago Codified Privacy, Safety, and

Dignity in Federal Law.

Title VII, Title IX, and the OSH Act fully embrace the privacy, safety, and

dignity principles that animate this matter. Title IX expressly protects the dignity of

the sexes in intimate areas, and is implemented by regulations that expressly do the

same. The regulations promulgated pursuant to the OSH Act, like Title IX, expressly

guard sex-specific privacy in intimate areas. See discussion infra Part III. Title VII’s

interpretation has reach the same end largely through case law rather than through

statutory or regulatory text. Either way, federal law wholly affirms the dignity,

safety, and privacy of individuals in intimate areas, whether at school or work.

The congruence of Title VII, Title IX, and the OSH Act, when it comes to

intimate areas is unsurprising, perhaps even essential. Take, for example, the

Plaintiffs, Harrold ISD and Heber-Overgaard Unified School District. Schools are not

merely institutions of education, but workplaces.1 Thus, schools are duty-bound to

1 As confirmed by census and other governmental data, Plaintiffs’ Title VII interests are significant.

Not only do they employ millions of employees nationwide, but education-related employees are

overwhelmingly the majority of governmental employees. As an example, consider the following

statistics from some of the Plaintiffs. In Texas, the 2014 census data shows that there are 1,614,390

total state and local government workers, including 1,021,532 (approx. 63%) in education. See U.S.

CENSUS BUREAU, STATE AND LOCAL GOVERNMENT EMPLOYMENT AND PAYROLL DATA: MARCH 2014, 2014

ANNUAL SURVEY OF PUBLIC EMPLOYMENT & PAYROLL (released Jan. 8, 2016), available at

https://www.census.gov/govs/apes/. In West Virginia, the 2014 census data shows that there are

120,680 total state and local government workers, including 71,609 (approx. 59%) in education. Id. In

Arizona, there are 76,000 state employees, and 257,700 local government employees. See ARIZ. OFFICE

OF ECONOMIC OPPORTUNITY, MONTHLY EMPLOYMENT REPORT 7, available at https://laborstats.az.gov/

sites/default/files/documents/files/Emp-Report-Aug2016.pdf, see generally, ARIZ. OFFICE OF

EMPLOYMENT & POPULATION STATS., CURRENT EMPLOYMENT STATS. DATA, available at http://

azstats.gov/ces-data-query-tool/. Tennessee budgets for 47,422 state employees, plus higher education.

See 2016–2017 STATE OF TENN. BUDGET, COMPARISON OF AUTHORIZED POSITIONS, STATE AGENCIES &

HIGHER EDUC. A-46, available at http://www.tennessee.gov/assets/entities/finance/budget/



provide both safe and reasonable educational environments, as well as safe and

reasonable workplaces for their employees. See Ex. P, ECF No. 11-2 at ¶ 5. In many

educational institutions, the same intimate areas are accessed simultaneously by

both students and teachers (employees). See, e.g., id. at ¶ 6.

Even in larger educational environments, where students access intimate

facilities designated for students, and faculty access intimate facilities separately

designated for faculty, it is unavoidable that students and educators 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 will occur, for example, when football players and their

coaches share the same facilities at the stadium, or when a separate fieldhouse or

athletic facility requires track athletes and their coaches to share intimate facilities.

Regardless of the particular circumstance, the intimate nature of education—where

children and employee adults acting in loco parentis are constantly together—means

that Titles VII and IX are inextricably intertwined as to the Court’s injunction, with

the OSH Act adding additional layers of safety and protection. Therefore, all

Defendants are proper parties and should be enjoined from using Title VII, Title IX,

and the OSH Act in a way contrary to the injunction.

attachments/2017BudgetDocumentVol1.pdf. Active state and local/parish employees in Louisiana

total approximately 184,521. See LA. DEP’T OF STATE CIVIL SERV. REPORT ON STATE EMP’T 6 (Oct. 14,

2016), avaiable at http://www.civilservice.louisiana.gov/files/weekly_reports/fy1617/statewide/

weeklyreport20161014.pdf (showing 73,295); TEACHERS’ RET. SYS. OF LA., 2014–2015 COMPREHENSIVE

ANNUAL FIN. REPORT 112, available at https://www.trsl.org/uploads/File/Annual%20Reports/CAFR/

2015_CAFR_web.pdf (showing 83,602); MUN. EMPS. RET. SYS. OF LA., AUDIT REPORT 13 (June 30, 2015

& 2014), available at http://mersla.com/Files/Articles/MERSfinal12-28-15.pdf (showing 15,549); LA.

SCH. EMPS.’ RET. SYS., FIN. STATEMENT AUDIT FOR THE YEARS ENDED JUNE 30, 2016, AND 2015, at 17

(Oct. 14, 2016), available at https://lsers.net/lsers/Portals/0/annualreports/2016_FinAudit.pdf

(showing 12,075).



A. Title VII.

Because Titles VII and IX differ in their operation, the mechanism of the

intimate area protections contained within each varies. Title IX is a protective

provision that usually attaches to the dissemination of federal monies. See, e.g.,

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998) (“[W]hereas Title VII

aims centrally to compensate victims of discrimination, Title IX focuses more on

‘protecting’ individuals from discriminatory practices carried out by recipients of

federal funds.”) (citation omitted). The receipt of federal monies, and the associated

conditions, is essentially contractual. Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006); Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 181–82 (2005); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981). The boundaries of Title VII, on the other hand, are not the product of contract-

like transactions, but have been largely forged through dispute-related adjudications

by EEOC and federal court decisions.

1. Hostile Work Environments.

One of the cornerstones of Title VII is that it “affords employees the right to

work in an environment free from discriminatory intimidation, ridicule, and insult.”

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The antithesis is a “hostile

work environment.” Id. at 65–66. Myriad circumstances can create a “hostile work

environment,” and “[w]hether an environment is objectively hostile or abusive is

determined by considering the totality of the circumstances.” Hockman v. Westward

Commc'ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004) (citing Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993)).

Exposure to sexual advances and naked bodies within the work environment

can make that environment impermissibly hostile. See Vinson, 477 U.S. at 60 & 73.

A sexually hostile work environment can arise in many ways, including exposing

one’s genitals to other workers. Williams v. Mo. Dep’t of Mental Health, 407 F.3d 972,



974–75 (8th Cir. 2005), abrogated on other grounds by Torgerson v. City of Rochester,

643 F.3d 1031 (8th Cir. 2011); Melgarejo v. 24 Hour Prof’l Janitorial Servs., No. 3:07-

CV-1847-B, 2008 WL 958203, at *1, 4 (N.D. Tex. Apr. 8, 2008); Rosales v. City of San

Antonio, No. SA-00-CA-0144, 2001 WL 1168797, at *11 (W.D. Tex. July 13, 2001);

Crihfield v. Monsanto Co., 844 F. Supp. 371, 373 (S.D. Ohio 1994) (noting only an

allegation that “exposure of his genitals” created a hostile work environment under

Title VII). The open display of genitalia through pictures and pornography can have

the same affect. See, e.g., Brown v. Henderson, 257 F.3d 246, 256 (2d Cir. 2001);

Barbetta v. Chemlawn Serv. Corp., 669 F. Supp. 569, 572–73 (W.D.N.Y. 1987);

Sanchez v. City of Miami Beach, 720 F. Supp. 974, 977 (S.D. Fla. 1989) (a sexually

hostile work environment existed when men subjected women to “a plethora of

sexually offensive posters, pictures, graffiti and pinups”); Kruger v. Securitas Sec.

Servs., No. 5:04-CV-91, 2005 WL 2417658, at *2, 4, 8 (W.D. Mich. Sept. 30, 2005);

Carlson v. C.H. Robinson Worldwide, Inc., No. Civ.02-3780 JNE/JGL, 2005 WL

758602, at *21 (D. Minn. Mar. 31, 2005).

2. Intimate Areas.

Because they are part of an employee’s overall work habitat, what happens in

intimate areas can create a hostile work environment. See, e.g., Vinson, 477 U.S. at

60. An employee that “stood in the doorway of the ladies’ restroom as [his co-worker]

was washing her hands” creates a hostile work environment. See Hockman, 407 F.3d

at 321–22. Sexually explicit drawings in the restroom, as well as pictures of naked

women in the locker room, can create a hostile work environment. See Waltman v.

Int’l Paper Co., 875 F.2d 468, 471 (5th Cir. 1989). In another matter, “racist graffiti

. . . in the [employer’s] bathrooms and locker room” were sufficient to sustain a claim

of a hostile work environment. See EEOC v. Rock-Tenn Servs. Co., 901 F. Supp. 2d

810, 824 (N.D. Tex. 2012). Thus, conduct in and around intimate areas can certainly

create a hostile work environment.



Moreover, courts have concluded that the failure to provide employees with

sex-designated intimate facilities creates a hostile work environment. In Onodera v.

Kuhio Motors, Inc., No. 13–00044 DKW–RLP, 2014 WL 1031039, *1 (D. Haw. Mar.

13, 2014), a female supervisor entered the men’s restroom to “berate” an employee

while he urinated with genitals exposed. Permitting the employee’s complaint to

move forward, the court concluded that “[i]t is obviously neither typical, nor generally

appropriate, for a person to enter the restroom of the opposite gender and see other

employees partially exposed, relieving themselves. A reasonable person in this

situation would likely feel uncomfortable and could, without understanding the legal

requirements of a successful discrimination claim, believe that they were subject to

sexual harassment and/or discrimination.” Id. at *6.

In Wedow v. City of Kansas City, 442 F.3d 661, 667 (8th Cir. 2006), female

firefighters alleged, inter alia, that they did not have “adequate facilities (i.e., private

bathrooms, shower facilities, or changing areas).”

Ms. Kline and Ms. Wedow also complained of a lack of adequate

restrooms, showers, and private changing facilities (referred to

collectively as “facilities”). Showering at the station after fighting a fire

is necessary to maintain good health when serving in 24–hour shifts. At

a number of stations that Ms. Wedow and Ms. Kline visited on a daily

basis as battalion chiefs, the restrooms were located in the male locker

rooms with the male shower room, doors were not secure, males had the

keys, and where female restrooms existed, they were unsanitary and

often used as storage rooms. Food and water for the station’s pet dog

were kept in the women’s room in two stations and sexually explicit

magazines and a poster were kept in the female restroom in station 23.

Most of the female restrooms that existed did not contain shower rooms

and in some stations, the women's shower could be accessed only

through the male bunkroom.

Id. at 667–68. The Eighth Circuit found that the lack of providing sex-specific

facilities to the women violated Title VII.

We cannot say as a matter of law that being required to work as a

firefighter with inadequate protective clothing and inadequate restroom

and shower facilities is a mere inconvenience. Title VII makes it



unlawful to discriminate on the basis of sex with regard to the “terms,

conditions, or privileges of employment” and prohibits an employer from

depriving “any individual of employment opportunities or otherwise

adversely affect[ing] his status as an employee” on the basis of sex. 42

U.S.C. § 2000e–2(a)(2). The record amply demonstrates that the terms

and conditions of a female firefighter’s employment are affected by a

lack of adequate protective clothing and private, sanitary shower and

restroom facilities, because these conditions jeopardize her ability to

perform the core functions of her job in a safe and efficient manner. The

danger inherent in the job of a firefighter compounded by the need to

move and work efficiently in those dangerous circumstances, to quickly

change in and out of gear, to shower for health reasons following a fire,

and the need to serve in 24–hour shifts, combine to make the provision

of adequate protective clothing and facilities integral terms and

conditions of employment for a firefighter. Thus, there was sufficient

evidence to support the juries’ findings that the failure to furnish the

necessary correct gear and facilities on the basis of sex was an adverse

employment action prohibited by Title VII.

Id. at 671–72.

These rulings, of course, mean that it is reasonable as a matter of law to hold

a reasonable expectation of privacy from exposure to the opposite sex within the

workplace. Notably, this is a far cry from the “get over it” attitude displayed by

Defendants.

Conversely, cases cited by Defendants (ECF Nos. 40, 65) that address “gender

identity” claims within the workplace do not involve access to intimate areas. See,

e.g., EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 454 (5th Cir. 2013) (en

banc); Glenn v. Brumby, 663 F.3d 1312, 1314–15 (11th Cir. 2011); Smith v. City of

Salem, 378 F.3d 566, 568–69 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214

F.3d 213, 214 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir.

2000); Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 702 (8th Cir. 2012); Rumble

v. Fairview Health Servs., No. 14–cv–2037 (SRN/FLN), 2015 WL 1197415, at *2 (D.

Minn. Mar. 16, 2015); Macy v. Holder, EEOC Decision 0120120821, 2012 WL

1435995, at *1 (Apr. 20, 2012); Jameson v. Donahoe, EEOC Decision 0120130992,

2013 WL 2368729, at *1 (May 21, 2013). The one circuit court, besides the Fourth



Circuit, to sincerely grapple with access to intimate areas2 concluded that the privacy

and dignity concerns of third parties in intimate areas “constitutes a legitimate,

nondiscriminatory reason for [an employee’s] termination under Title VII.” Etsitty v.

Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007). The EEOC’s Lusardi

decision, supra, did not cite to a single case that supported mixing the sexes in

intimate areas, and EEOC made no effort to even address the invasion of the privacy,

safety, and dignity rights of other employees that are implicated by its decision.

Lusardi, 2015 WL 1607756, at *14 (granting a male employee “equal and full access

to the common female facilities,” but not even acknowledging the concurrent invasion

of privacy that such an order places upon the employer’s female employees).

3. Price Waterhouse.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is not to the contrary. The

case did not involve access to intimate areas, much less sexual harassment or a

hostile work environment. In as much as Price Waterhouse vindicated discrimination

because “the applicant or employee was a woman,” 490 U.S. at 250, Defendants’ view

of access to intimate areas turns Price Waterhouse on its head. Indeed, Price

Waterhouse cannot simultaneously extol and eviscerate the rights of women in the

workplace. Regardless, if there were any doubt about what Price Waterhouse means

when it comes to intimate areas, the Court later put it to rest. United States, 518 U.S.

at 550 n.19 (concluding that providing equal opportunity for women still means that

2 This is one of many things that the Fourth Circuit got wrong in Grimm, 822 F.3d 709, stayed and

mandate recalled pending disposition of petition for certiorari, 136 S. Ct. 2442 (U.S. Aug. 3, 2016) (No.

16A52), petition for cert. filed, (U.S. Aug. 29, 2016) (No. 16-273). While it agreed “that ‘an individual

has a legitimate and important interest in bodily privacy such that his or her nude or partially nude

body, genitalia, and other private parts’ are not involuntarily exposed,” Grimm, 822 F.3d at 723

(quoting Niemeyer, J., dissenting), the Court then digressed into making a dismissive policy judgment

about the importance of those interests. Id. at 723 n.10. However, the Fourth Circuit was obliged to

interpret the regulation in light of what it is, and not what it would it have it to be, for “it is up to

legislatures, not courts, to decide on the wisdom and utility of legislation.” Ferguson v. Skrupa, 372

U.S. 726, 729 (1963). Congress, and myriad implementing regulations, make it clear that the privacy,

safety, and dignity interests appurtenant to intimate areas and the human body are genuine and

enduring elements of our country’s public policy.



we must “afford members of each sex privacy from the other sex.”).

4. Other Law.

According to standard legal treatises, “gender identity” is not within the ambit

of Title VII. See, e.g., Margaret C. Jasper, Employment Discrimination Law Under

Title VII 45 (2d ed., 2008) (stating that Title VII makes it unlawful “to discriminate

against any employee or applicant for employment because of his or her sex”); Mack

A. Player, Employment Discrimination Law 239 (1988) (providing that the term “sex”

for the purposes of Title VII generally refers to the division of organisms into

biological sexes); Charles A. Sullivan, et al., Federal Statutory Law of Employment

Discrimination 161 (1980) (same). Indeed, “gender identity” was a virtually

unrecognized construct among legal academics when Titles VII and IX became law.

It was not even mentioned in a law review article on the subject of Title VII or IX

until the 1980s.

B. Title IX.

The adjudicated protections of Title VII mirror the promulgated ones of Title

IX. In construing “sex” under Title IX, courts frequently rely on Title VII. See, e.g.,

Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 75–76 (1992) (applying Title VII

rule to Title IX case); Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219

(5th Cir.1998) (same). As such, liability under both laws rests for creating a “hostile

educational environment.” See, e.g., Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,

636 (1999). And the same type of sexual actions and activities found within the Title

VII jurisprudence also suffice to create a “hostile educational environment” under

Title IX. See Franklin, 503 U.S. at 73–75. This is because Titles VII and IX together

“strike at the entire spectrum of disparate treatment of men and women,” and what

creates a hostile or offensive environment. Vinson, 477 U.S. at 64–65.

Like Title VII, the exposure of genitals and nudity can create a hostile

educational environment under Title IX. See, e.g., Doe v. Sabine Par. Sch. Bd., 24 F.



Supp. 2d 655, 658 (W.D. La. 1998) (“The Brown child began to commit acts of sexual

aggression upon the Doe child while at school, including ‘the display of genitals,

unwelcome touching of genitals, and acting out sexual acts and trying to get the Doe

child to participate.’”); J.B. ex rel Bell v. Mead Sch. Dist. No. 354, 2010 WL 5173164,

at *4 (E.D. Wash. Dec. 10, 2010); EEOC v. Int’l Profit Assoc., Inc., 654 F. Supp. 2d

767, 786 (N.D. Ill. 2009).

In addition, the preservation of privacy, and the independent dignity of the

sexes, are articulated under Title IX by Congress and implementing regulations. See,

e.g., 20 U.S.C. § 1686; 34 C.F.R. §§ 106.32–34; 28 C.F.R. § 54.410. In as much as the

parties and the Court have addressed Title IX to this point, Plaintiffs rely on their

prior argument, and the Court’s rulings.

III. The Injunction Implicates DOL and OSHA Activity.

Defendant DOL is the federal agency responsible for supervising the

formulation, issuance, and enforcement of rules, regulations, policies, and forms by

the Occupational Safety and Health Administration (“OSHA”). The United States

Secretary of Labor, Defendant Thomas E. Perez, is authorized to issue, amend, and

rescind the rules, regulations, policies, and forms of OSHA. The Assistant Secretary

of Labor for OSHA, Defendant David Michaels, is responsible for assuring safe and

healthful working conditions for working men and women by setting and enforcing

standards and by providing training, outreach, education and assistance. ECF No. 6

at 7.

“Defendants [all of them] have affected the rights and obligations of employers,

public schools, and students across the country.” ECF No. 11 at 25 (emphasis added).

Specifically, as to DOL and OSHA, Plaintiffs articulated that “the 2015 OHSA rule

(or so-called “guidance”) abjured the agency’s prior rule requiring employers to

provide “toilet rooms separate for each sex.” ECF No. 11 at 27 (citing Mem. from John

B. Miles, Director, Directorate of Compliance Programs, OSHA to Reg’l Adm’rs, et al.



(Apr. 6, 1998) (“Miles Memo”), available at https://www.osha.gov/pls/oshaweb/

owadisp.show_document?p_table=INTERPRETATIONS&p_id=22932).

Indeed, the regulations promulgated by DOL and OSHA pursuant to the OSH

Act, 29 U.S.C. § 651 et seq., show that the injunction applies to their activity. Under

the OSH Act, DOL and OSHA are to:

by rule promulgate as an occupational safety or health standard any

national consensus standard, and any established Federal standard,

unless he determines that the promulgation of such a standard would

not result in improved safety or health for specifically designated

employees. In the event of conflict among any such standards, the

Secretary shall promulgate the standard which assures the greatest

protection of the safety or health of the affected employees.

29 U.S.C. § 655(a). At the time the OSH Act was passed in 1970, “national consensus

standard,” and the “established Federal standard,” fully respected the privacy, safety,

and dignity of the sexes in intimate areas. ECF No. 6 at 10–11. Accordingly, in 1974,

DOL promulgated the following:

(c) Toilet facilities—(1) General. (i) Except as otherwise indicated in this

paragraph (c)(1)(i), toilet facilities, in toilet rooms separate for each sex,

shall be provided in all places of employment in accordance with table

J-1 of this section. The number of facilities to be provided for each sex

shall be based on the number of employees of that sex for whom the

facilities are furnished. Where toilet rooms will be occupied by no more

than one person at a time, can be locked from the inside, and contain at

least one water closet, separate toilet rooms for each sex need not be

provided.

29 C.F.R. § 1910.141(c)(1)(i). Additionally, “[o]ne shower shall be provided for each 10

employees of each sex, or numerical fraction thereof, who are required to shower

during the same shift.” 29 C.F.R. § 1910.141(d)(3)(ii).

Beyond the privacy and dignity principles inherent in such regulations, OSHA

also wanted to protect women because of the biological and physical needs they

possess independent of men. See supra Miles Memo. Of particular concern were

“pregnant women, women with stress incontinence, and men with prostatic



hypertrophy needing to urinate more frequently,” id., physiological conditions that

are not clearly implicated by those that declare themselves the opposite sex. Thus,

pregnant women and their babies were at the heart of the need to provide sex-

separated facilities.3 Indeed, if intimate areas were not “available” to women from a

timeliness standpoint (“Timely access is the goal of the standard.”), harm could result.

Id. When asked in 2013 about the intersection of “gender identity” and 29 C.F.R.

§ 1910.141(c)(1)(i), OSHA confirmed two important things: (1) that, as a regulation

concerned with the biological differences between men and women, “OSHA standards

do not address gender identity”; and (2) that, as a biological regulation, it “allow[s]

for privacy regardless of an employee’s gender identity.” Letter from Thomas Galassi,

Director, Directorate of Enforcement Programs, OSHA, to John P. Gause, Comm’n

Council, Me. Human Rights Comm’n (Apr. 16, 2013), available at

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRET-

ATIONS&p_id=29843. Thus, just three years ago, OSHA confirmed that availability

and privacy were at the heart of its regulations, and not “gender identity.”

That suddenly changed in 2015. And like the other Defendants in this matter,

DOL and OSHA do not address in their new “Guide” that permitting men into areas

designated for women makes those intimate spaces “unavailable” to the women who

are reasonably uncomfortable sharing intimate areas with the opposite sex. Not only

does an increase in the number of people using a designated space reduce its overall

“availability,” but when the sex-specific privacy of an intimate space is violated, the

“availability” of the space as an intimate one is destroyed.

As alleged in Plaintiffs’ Application for Preliminary Injunction, “[t]he 2015

OSHA guidance concludes that employees have the right to access the restroom of

their choosing under federal law.” ECF No. 11 at 27–28 (citing ECF No. 6-4); ECF No.

3 Protecting women’s privacy in the workplace is a common theme. See, e.g., 29 U.S.C. § 207(r)(1)(B)

(requiring separate, private lactation rooms).



52 at 11, 14. Like the other Defendants, DOL and OSHA “announced in official

statements that ‘gender identity’ is a new, enforceable category under federal law.”

ECF No. 11 at 28; see also ECF No. 52 at 11, 14. And as made clear by Plaintiffs in

their Application for Preliminary Injunction, “Defendants’ unlawful mandates

conflict with the protections for personal privacy afforded under law. . . . And they

threaten to override the practice in the countless schools that differentiate intimate

facilities on the basis of sex consistent with Title IX, federal regulations, and laws

protecting personal privacy and dignity.” ECF No. 11 at 33; see also ECF No. 52 at

11, 14.

These “federal regulations, and laws protecting personal privacy and dignity,”

ECF No. 11 at 33, of course, include those promulgated under the OSH Act. Just like

DOJ and DOE’s Joint Letter (Ex. J, ECF No. 6-10) conflicts with the text of statutes,

20 U.S.C. § 1686, and promulgated regulations, 34 C.F.R. §§ 106.32–34; 28 C.F.R.

§ 54.410, so does DOL and OSHA’s “Guide” (Ex. D, ECF No. 6-4). DOL and OSHA’s

“Guide” is additionally troubling because it espouses the textual conflict as a “Core

principle,” Ex. D, ECF No. 6-4 at 1, and proclaims to all within its reach that the violation

of the new rule is a “Core” element of DOL and OSHA’s existence, and enforcement

power.

The OSH Act covers most private sector employers and their workers, in addition

to some public sector employers and their workers in the 50 states and certain territories

and jurisdictions under federal authority. Workers at state and local government

agencies are not covered by OSHA, but have OSH Act protections if they work in those

states that have an OSHA-approved State Plan. OSHA rules also permit states and

territories to develop plans that cover state and local government workers. In these cases,

public sector workers and employers remain under federal OSHA jurisdiction. U.S. Dep’t

of Labor, Table of OSHA-Approved State Plans: Basic Facts and Information, available

at https://www.osha.gov/dcsp/osp/approved_state_plans.html.



As not every Plaintiff has a state plan, some may seem to fall outside DOL and

OSHA’s authority.4 In actuality, however, “Plaintiffs and non-plaintiffs will incur

irreparable harms,” ECF No. 11 at 33, from the enforcement of Defendants’ new rule,

necessitating nationwide relief. ECF No. 58; ECF No. 86 at 2–5. Indeed, virtually

every private sector employer falls within the ambit of OSHA’s jurisdiction. 29 U.S.C.

§ 653.

Plaintiffs pled wrongdoing by DOL and OSHA in their Amended Complaint,

ECF No. 6, requested and briefed an injunction against DOL and OSHA, ECF Nos.

11 and 52, and the Court’s injunction is appropriately applied to DOL and OSHA.

IV. Defendants’ “Guidelines” Are Enjoined in Total.

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, Plaintiffs contend that Defendants should not be permitted

to use, create, proliferate, or otherwise distribute any guidance or writing that

prohibits separating the sexes in intimate areas.

Defendants’ rule is “final agency action under the APA,” ECF No. 58 at 17, and

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); see also 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

4 Twenty-two states and territories have such plans. See U.S. Dep’t of Labor, OSHA, Office of State

Programs, FAQs, available at https://www.osha.gov/dcsp/osp/index.html. Plaintiffs that fall within the

range of DOL and OSHA’s authority as employers include Arizona, Kentucky, Tennessee, and Utah.

As the Court is aware, ten additional states brought a nearly identical lawsuit in Nebraska v. United

States, No. 4:16-cv-3117 (D. Neb.) (filed July 8, 2016), including the same claims against DOL and

OSHA. Plaintiffs in Nebraska v. United States that have state plans include Michigan, South Carolina,

and Wyoming.



a definitive position that has a direct and immediate impact on the parties . . . .”)).

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

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, validly adopted regulations, or other law 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).

A. The Principles of Severability Are Inapplicable Here.

Defendants contend that the principle of severability should apply to their

many publications that evidence their new rule. ECF No. 74 at 3 n.2. But the principle

is inapplicable here because the “guidelines” are not regulations promulgated in

accordance with the notice and comment requirements of the APA. Because

Defendants acted with the clear intent to subvert the unambiguous text of Congress



and myriad regulations, the survival of any element of their effort should not be

permitted.

“‘Unless it is evident that the Legislature would not have enacted those

provisions which are within its power, independently of that which is not, the invalid

part may be dropped if what is left is fully operative as a law.’” Buckley v. Valeo, 424

U.S. 1, 108–09 (1976) (per curiam) (quoting Champlin Refining Co. v. Corp. Comm’n

of Okla., 286 U.S. 210, 234 (1932)). The same approach applies to regulations. See K

Mart Corp. v. Cartier, Inc., 486 U.S. 281, 293–95 (1988); United States v. Booker, 543

U.S. 220, 320 (2005) (Thomas, J., dissenting) (“I also assume that our doctrine on

severability and facial challenges applies equally to regulations and to statutes.”

(citation omitted)).

But none of this is applicable to the case sub judice, for the doctrine of

severability is the refuge of statutes and regulations which, though partially

unlawful, were legitimately enacted by Congress or properly promulgated in

accordance with the APA’s notice and comment requirement. See, e.g., New York v.

United States, 505 U.S. 144, 187 (1992); Alaska Airlines, Inc. v. Brock, 480 U.S. 678,

697 (1987); Luminant Generation Co. LLC v. EPA, 714 F.3d 841, 859 (5th Cir. 2013);

Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 963–64 (D.C. Cir. 2013), overruled on

other grounds, Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014);

FEC v. NRA Political Victory Fund, 6 F.3d 821, 827–28 (D.C. Cir. 1993); Ass’n of

Private Sector Colls. & Univs. v. Duncan, 110 F. Supp. 3d 176, 192–93 (D.D.C. 2015),

aff’d, 640 F. App’x 5 (D.C. Cir. 2016); Conservation Law Found. v. Pritzker, 37

F. Supp. 3d 254, 271 (D.D.C. 2014); Consumer Energy Council of Am. v. Fed. Energy

Regulatory Comm’n, 673 F.2d 425, 440–45 (D.C. Cir. 1982), aff’d sub nom., Process

Gas Consumers Grp. v. Consumer Energy Council of Am., 463 U.S. 1216 (1983); Earth

Island Inst. v. Pengilly, 376 F. Supp. 2d 994, 1011 (E.D. Cal.), amended in part sub

nom., Earth Island Inst. v. Ruthenbeck, No. Civ. F-03-6386 JKS, 2005 WL 5280466



(E.D. Cal. Sept. 20, 2005), and aff’d in part, remanded in part sub nom., Earth Island

Inst. v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007), aff’d in part, rev’d in part sub nom,

Summers v. Earth Island Inst., 555 U.S. 488 (2009); United States v. Rainbow Family,

695 F. Supp. 294, 312 (E.D. Tex. 1988); but see Philip Morris USA, Inc. v. FDA, 2016

WL 4378970, at *22 (D.D.C. Aug. 16, 2016) (applying severance to a “Guidance,”

though the “Guidance” at issue was “not a legislative rule” and, therefore, “no notice-

and-comment was required, and the Guidance was issued appropriately.”).

Even if severability were somehow applicable to the “guidelines” at issue here,

“[w]hether an administrative agency’s order or regulation is severable, permitting a

court to affirm it in part and reverse it in part, depends on the issuing agency’s

intent.” North Carolina v. FERC, 730 F.2d 790, 795–96 (D.C. Cir. 1984). “Severance

and affirmance of a portion of an administrative regulation is improper if there is

‘substantial doubt’ that the agency would have adopted the severed portion on its

own.” Davis Cty. Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997)

(citing FERC, 730 F.2d at 795–96; Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441, 1447 (D.C.

Cir. 1994)).

Here, most significant is the Court’s finding that the Defendants failed to

comply with the APA, ECF No. 58 at 26–27, and Plaintiffs aver that they did so

intentionally. Notwithstanding Defendants’ pleas to the contrary, the “actual legal

effect [of Defendants’ Guidelines] prove that they are ‘compulsory in nature.’” ECF

No. 58 at 26 (citation omitted). Indeed, “post-Guidelines events, where Defendants

have moved to enforce the Guidelines as binding, buttress this conclusion.” Id.

Consciously, “Defendants have ‘drawn a line in the sand’ in that they have concluded

Plaintiffs must abide by the Guidelines.” Id. And “Defendants confirmed at the

hearing that schools not acting in conformity with Defendants’ Guidelines are not in

compliance with Title IX.” Id.

Defendants, now declared guilty by their actions, cannot innocently plead that



they had no intent to create binding regulations outside of the APA. That argument

may hold some force were there an isolated incident of a single regulatory enforcer

taking an overzealous approach to a non-binding interpretation. But Defendants

collectively and systematically enforced their new rule across the country, clearly

demonstrating that their intent was to skirt the APA. See ECF No. 52 at 2–7

(discussing the enforcement actions).

The severability doctrine ensures that agency policy is made by agencies

themselves, and not by the courts. Thus, the doctrine of severability permits a court

to minimize the extent to which it displaces legislative will. See Crowell v. Benson,

285 U.S. 22, 62–63 (1932). But here, in the absence of genuine legislative will, there

is nothing for the Court to salvage in applying the doctrine. The intent of the agencies

involved is unlawful and therefore, unredeemable.

Finally, there is no actual need for the enjoined “guidances” to be revived. The

volumes of material produced by Defendants that address topics other than mixing

the sexes in intimate areas are virtually unlimited.5 Moreover, if an otherwise lawful

message within an enjoined “guidance” must be republished, doing so will not be

difficult.

B. Severing the “Guidelines” Will Create a Significant Burden on

the Court, the Parties, and the Public.

Severability, applied here, creates a significant burden on the Court, the

parties, and the public.

5 Indeed, Defendants are 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

bullying. DOE also links to a bullying website, listed as www.bullyinginfo.org, which links to

www.stopbullying.org. The bottom line is that over several years, Defendants have released countless

publications which more than 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.



Courts may enforce their own injunctions, Waffenschmidt v. MacKay, 763 F.2d

711, 716 (5th Cir. 1985), though the courts are often dependent upon information

from the parties to litigation, or the public, to inform them that the terms of an

injunction are being violated. Here, severing any of Defendants’ various “guidelines”

makes the enforcement dynamics extensive and complicated.

First, it will be difficult for the Court to ensure that the unlawful portions of

the “guidelines” are appropriately invalidated. The task is easier with statutes and

promulgated regulations—discrete publications with definitive citations, unlike

“guidelines.” For example, unlike statutes and regulations, the “guidelines” enjoined

by the Court aren’t available on Westlaw. For example, in the Court’s Preliminary

Injunction Order (ECF No. 58), published on Westlaw (2016 WL 4426495),

regulations like 34 C.F.R. § 106.33, are hyperlinked, while the “guidelines” enjoined

by the Court are not. Prelim. Inj. Order, Texas v. United States, No. 7:16-cv-00054-O,

2016 WL 4426495, at *1 n.4 (N.D. Tex. Aug. 21, 2016), ECF No. 58. In the online

world of legal research in which we now live, the absence of an indelible “red flag” at

the top of an invalid case, or law, speaks volumes.

The sensible way 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.6 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.

As to the public in general, it is impossible to redact the guidances already

distributed. Undoubtedly, copies of the improper guidances exist on countless

6 This raises an additional problem in that Defendants need to first list the universe of the “dark

matter” to be redacted. Plaintiffs catalog 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.



computers, endless e-mail strings, and in hard copy forms in various files across the

country. There is no practical way for the Court to reach its editorial hand into those

places and properly revise the guidances, or even notify the recipients of those

guidances about what is or is not improper. Thus, while the Court can control what

“dark matter” may look like moving forward, properly redacting the endless

distribution of unredacted copies already distributed is not possible. And since the

“guidelines” are not chronicled in Westlaw, there is no practical way for someone like

a school board attorney, served with an investigatory notice or complaint from DOE’s

Office for Civil Rights (the enforcement arm of DOE) to know that the “guidelines”

cited by OCR were enjoined by the Court.

At bottom, nothing requires the Court to apply the doctrine of severability or

otherwise engage in remedial measures to conform Defendants’ “guidelines” to lawful

form. Defendants created this problem by engaging in unlawful rulemaking and must

be held responsible for their actions. If, on the other hand, the Court concludes that

the APA requires severance of the “guidelines,” then the APA will no longer serve as

a deterrent to improper agency action, but an enabler of it. By severing improper

sentences or paragraphs within unlawful “guidances,” there is no incentive for

agencies to comply with the APA and enact wholly proper regulations. Rather,

agencies like Defendants will be encouraged to continually “enact” through

“guidances” and unpublished rules that which may be proper alongside that which is

not, knowing that most of its unlawful rulemaking will find solid footing amidst the

occasional legal challenge. The Court should not indulge Defendants’ invitation to do

their work for them, or reward with survival the “guidelines” that were published

with the intent to circumvent the APA.

CONCLUSION

The principles of privacy, safety and dignity that demand the separation of the

sexes in intimate facilities are ubiquitous. They apply where we do our jobs—kids in



school, and adults in the workplace. Title VII, Title IX, and the OSH Act all codify the

“personal privacy principle” and, apart from Defendants’ “guidances” and the Lusardi

decision, there is no legal basis upon which to conclude that invading the reasonable

privacy expectations that children and adults have in intimate areas is somehow

justified under federal law.

The rule at issue is being implemented and enforced by all Defendants in

multiple arenas of federal law. To enjoin only some Defendants, or the application of

their new rule to only some areas of federal law, permits the unlawful rule to live at

the expense of the Court’s authority.

Accordingly, the Court should deny the remaining parts of Defendants’ Motion

for Clarification (ECF No. 65) and affirm the scope of the injunction to Title VII, the

OSH Act, and all Defendants. Furthermore, the Court should affirm that the enjoined

“guidances” are fully enjoined, and that there is no basis for the application of the

doctrine of severability.



Respectfully submitted this the 24th day of October, 2016,

LUTHER STRANGE

Attorney General of Alabama

BRAD D. SCHIMEL

Attorney General of Wisconsin

PATRICK MORRISEY

Attorney General of West Virginia

HERBERT SLATERY, III

Attorney General of Tennessee

MARK BRNOVICH

Attorney General of Arizona

SCOTT PRUITT

Attorney General of Oklahoma

JEFF LANDRY

Attorney General of Louisiana

SEAN REYES

Attorney General of Utah

SAM OLENS

Attorney General of Georgia

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

BRANTLEY D. STARR

Deputy First Assistant Attorney General

PRERAK SHAH

Senior Counsel to the Attorney General

ANDREW D. LEONIE

Associate Deputy Attorney General

/s/ Austin R. Nimocks

AUSTIN R. NIMOCKS

Texas Bar No. 24002695

[email protected]

MICHAEL C. TOTH

Senior Counsel

JOEL STONEDALE

Counsel

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



CERTIFICATE OF SERVICE

I, Austin R. Nimocks, hereby certify that on this the 24th day of October, 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.

901 Congress Avenue

Austin, Texas 78701 /s/ Austin R. Nimocks

Austin R. Nimocks


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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT...

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