Judge Blocks Guidance On Transgender Rights

The national debate over transgender rights took yet another turn last week, after a federal judge in Texas temporarily blocked the Obama administration from enforcing new guidelines meant to expand students’ access to restrooms and locker rooms in schools.

In May, the U.S. departments of Education and Justice said that under Title IX, public schools must allow transgender students to use single-sex restrooms and locker rooms that align with their gender identity, even if it differs from their sex at birth.

U.S. District Judge Reed O’Connor, for the Northern District of Texas, Wichita Division, sided with Texas and 12 other state plaintiffs in his Aug. 22 order for a temporary injunction, which bars the federal agencies from enforcing the guidance and from initiating civil rights investigations in schools until he makes final judgment on the case.

Dispute Over Rulemaking

The Texas case centers largely on whether the federal agencies followed the proper process for rulemaking. The state plaintiffs argued that, under the Administrative Procedures Act, the departments were required to provide opportunity for notice and comment before setting a rule. But the federal agencies argued that they were merely interpreting an existing regulation.

Judge O’Connor found “that the plain meaning of the term sex as used in [a regulation relating to sex-segregated school restrooms] when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth” and not the gender students identify with.

O’Connor also ruled that a temporary injunction was appropriate in the multistate case, one of two that are currently before federal courts.

“The court concludes plaintiffs have established that the failure to grant an injunction will place them in the position of either maintaining their current policies in the face of the federal government’s view that they are violating the law, or changing them to comply with the guidelines and cede their authority over this issue,” O’Connor wrote.

In another case, the 4th U.S. Circuit Court of Appeals in Richmond, Va., took the Obama administration’s side, citing precedent and arguing that it was proper to defer to the federal interpretation of the law.

But the U.S. Supreme Court intervened in the Virginia case. On Aug. 3, the justices voted 5-3 to stay lower-court orders that would have allowed Gavin Grimm, who was born female but now identifies as a male, to use the boys’ restroom at his high school in Gloucester County, Va. The high court will decide later whether to take up the merits of that case for full argument and decision.

“The department is disappointed in the court’s decision, and we are reviewing our options,” a Justice Department spokesperson said in a statement in response to last week’s Texas injunction.

Texas Attorney General Ken Paxton and organizations advocating for transgender students also responded to the Texas order.

“This president is attempting to rewrite the laws enacted by the elected representatives of the people, and is threatening to take away federal funding from schools to force them to conform,” Paxton said in a statement. “That cannot be allowed to continue, which is why we took action to protect states and school districts, who are charged under state law to establish a safe and disciplined environment conducive to student learning.”

Kentucky Gov. Matt Bevin, a Republican, also cheered the O’Connor ruling. Kentucky is one of the state plaintiffs that had joined Texas in its legal battle.

“It is difficult to imagine a more absurd federal overreach into a local issue,” Bevin said in a statement. “The president is not promoting unity. In fact, he is doing quite the opposite. He is intentionally dividing America by threatening to sue or withhold funding from our cash-strapped public schools if they do not agree with his personal opinion on policies that remain squarely in their jurisdiction. They should not feel compelled to bow to such intimidation.”

Several civil rights organizations that advocate on behalf of transgender students, including the American Civil Liberties Union and Lambda Legal, called the ruling misguided and said it does not eliminate the requirement that school districts “treat transgender students fairly.”

“A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination,” the groups said in a joint statement. “The court’s misguided decision targets a small, vulnerable group of young people—transgender elementary and high school students—for potential continued harassment, stigma, and abuse.”