Trump Administration Court Filing May Signal Shift on Transgender Rights

By Mark Walsh — February 12, 2017 3 min read
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The U.S. Department of Justice has withdrawn a motion made last November by the Obama administration asking a federal appeals court to scale back a nationwide injunction blocking the May 2016 guidance for schools to respect the restroom choices of transgender students.

The move, in a short court filing on Feb. 10 in the U.S. Court of Appeals for the 5th Circuit, in New Orleans, signals that President Donald Trump’s administration may be taking a different approach to transgender rights than his predecessor.

“Defendants-appellants [the United States and various of its agencies and officials] hereby withdraw their pending November 23, 2016, motion for partial stay pending appeal,” says the motion in State of Texas v. United States. The motion was signed by Chad A. Readler, the acting assistant U.S. attorney general, as well as other Justice Department lawyers.

In the same filing, the United States joined with Texas and the 10 other states, two school districts, and other plaintiffs who challenged the transgender guidance to ask the 5th Circuit court to cancel oral arguments in the case that were scheduled for Tuesday, Feb 14.

“The parties are currently considering how best to proceed in this appeal,” the joint part of the motion says.

The new motion was noted on the Twitter feed of Equality Case Files, gay, lesbian, bisexual, and transgender rights group.

In its Nov. 23 motion before the 5th Circuit, the Obama administration had argued that a federal district judge in Wichita Falls, Texas, had gone too far by issuing a nationwide injunction blocking the May 13 document issued by the Departments of Education and Justice about transgender student rights under Title IX of the Education Amendments of 1972.

The Obama administration argued that the broad injunction interfered with the federal government’s interactions with the states that did not sue (with 12 states and the District of Columbia filing friend-of-the-court briefs backing the transgender guidance).

The Obama administration also filed a Jan. 6 brief, in its final days, repeating some of its arguments that the nationwide injunction was too broad and arguing for its interpretation of Title IX as supporting the view that schools should allow transgender students to use the restrooms and locker rooms corresponding to their gender identity.

Texas and the other plaintiff states and agencies, in a Dec. 5 court filing, called the Obama transgender guidance “an unprecedented overreach,” and because the district court had concluded that the guidances was likely facially invalid, the broad nationwide injunction against it was appropriate.

On Feb. 10, the same day the Justice Department asked to withdraw its motion to trim back the injunction and both sides sought a delay, the 5th Circuit court granted the requests and canceled the Feb. 14 oral arguments in the case.

The Trump administration’s filing in the 5th Circuit case portends that its forthcoming brief in the big transgender case in the U.S. Supreme Court may not track the Obama administration’s views, either.

In Gloucester County School Board v. G.G. (Case No. 16-273), the justices are considering whether courts must defer to a more informal series of Education Department statements on transgender rights that preceded the May 2016 “Dear Colleague” letter from the Education and Justice departments.

The Obama administration filed a 2015 brief in the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that strongly backed Gavin Grimm, the Gloucester County transgender boy who is fighting to use the boys’ restroom at his high school.

The federal government’s brief in the Gloucester County case—the Trump administration’s brief, that is—is due by the end of February, and oral arguments are scheduled for March 28.

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A version of this news article first appeared in The School Law Blog.