Judge blocks Obama order
Texas leaders score legal win over transgender bathroom policy
AUSTIN — On the eve of the first day of school for most Texas schoolchildren, a Fort Worth federal judge temporarily blocked enforcement of an Obama administration directive ordering schools to allow transgender students to use bathrooms that match their gender identity or risk lawsuits.
U.S. District Judge Reed O’Connor, in an order signed Sunday, said the U.S. Department of Education and other agencies failed to follow federal rules on administrative procedure, including public notice and comment requirements, when officials issued “directives which contradict the existing legislative and regulatory texts.”
The order represents a major legal win for Republican politicians in Texas and a dozen other states who challenged the Obama administration on the grounds that the advisory amounted to a unilateral revision and flawed reading of Title IX, the far-reaching 1972 federal statute that banned sex discrimination in schools that receive federal funds.
The judge, a George W. Bush appointee, did not resolve, however, the central
challenge in the lawsuit, which is whether decades-old federal statutes outlawing sex discrimination in public life apply to transgender students in schools.
“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school,” O’Connor wrote. “The resolution of this difficult policy issue is not, however, the subject of this order. Instead, the Constitution assigns these policy choices to the appropriate elected and appointed officials, who must follow the proper legal procedure.”
The U.S. Department of Justice, which defended the guidelines, may appeal the decision to the 5th U.S. Circuit Court of Appeals, where it could ask the judges there to put O’Connor’s order on hold as they consider the legal questions in the case. If government lawyers go that route, however, the appellate court could modify or affirm the injunction in its entirety. Another option is not to challenge the injunction and instead move ahead with litigation until O’Connor issues a final ruling
on the merits of the defendants’ claims, after which an appeal to the 5th Circuit could be filed.
A spokeswoman said the Justice Department was disappointed by the injunction and was reviewing its options.
Paxton blasts ‘overreach’
Texas Attorney General Ken Paxton issued a press release celebrating the order stopping, for now, what he called the “latest illegal federal overreach.”
“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. “The court prevented the federal government from relying on its flawed, unlawful guidance documents to schools and employers in an injunction that is effective nationwide.”
Paxton filed the lawsuit on behalf of Harrold Independent School District, a tiny district about 30 miles northwest of Wichita Falls which requires students to use bathrooms that correspond with their gender identity at birth. The district’s superintendent on Monday referred
requests for comment to Paxton’s communications director, Marc Rylander.
Legal experts, however, said Monday that schools remain bound by earlier federal rulings to protect students’ civil rights, which have been found to include gender identity, in accordance with Title IX.
“Even though Judge O’Connor preliminarily enjoined the federal government from enforcing the Department of Education’s guidelines on this issue, numerous federal courts have held — in tension if not direct conflict with Judge O’Connor’s decision — that federal anti-discrimination statutes prohibit gender identity discrimination,” said Adam Romero, an attorney at the University of California, Los Angeles’ Williams Institute, which studies gender identity and the law. “Judge O’Connor’s decision does nothing to relieve schools from their legal obligations as established in such decisions.”
Conservative groups, which have filed similar lawsuits across the country complaining the federal rules side-stepped Congress, hope O’Connor’s injunction will sway other judges to their cause.
“It shows that the exact arguments that are being raised are strong concerns and that there is a basis for our argument,” said Matt Sharp, an attorney for the Alliance Defending Freedom, a conservative Christian nonprofit. “We’re hopeful this case will have a good impact.”
Among Texas school officials, reactions to the ruling remained cautious ahead of any binding decision by the Fort Worth district court, many of them reiterating their districts’ policies on transgender students’ bathroom use.
Case-by-case basis
Richard Carranza, Houston ISD’s new superintendent, said Monday that his former district in San Francisco had transgender restrooms for at least seven years, and there were “zero reported issues.” The Houston school board passed a policy in 2011 specifically banning discrimination based on gender identity or discrimination. The policy does not mention bathrooms, but district officials have said that school leaders work with students on a case-by-case basis.
Earlier this year, Fort Worth ISD found itself at the center of a political storm after Lt. Gov. Dan Patrick accused it of keeping parents in the dark about transgender students’ bathroom use in schools. The district’s earlier rules said the status of a transgender student could be withheld from their parents because it could put the child at risk. The policy, updated in July, now states that parents must be made aware if their child has expressed gender identity concerns and needs special accommodations, which will be handled on a case-by-case basis.
“We don’t believe we were following the guidelines initially and after a productive summer with constituents, families and faith leaders, we don’t believe we are following the guidelines now,” district spokesman Clint Bond said. “We don’t believe it applies to us.”
Earlier this year, a federal appeals court in Virginia sided with a transgender student who sued his school board after it barred him using the boys’ restroom. The judges said the federal advisory — the same guidelines at issue in the Texas case — was an appropriate interpretation of federal law, a finding directly at odds with O’Connor’s analysis in the Texas case. The U.S. Supreme Court, however, put a temporary hold on the ruling earlier this month.