The request for a partial stay was filed on Nov. 23 before the U.S. Fifth Circuit Court of Appeals in response to an order from U.S. District Judge Reed O’Connor, a George W. Bush-appointed judge who instituted a nationwide order prohibiting the federal government from enforcing the guidance. The judge ruled the Obama administration overextended its authority by applying the provision against sex discrimination in Title IX of the Education Amendments of 1972 to transgender students.
The brief from the Obama administration sought a partial stay so the ruling would only apply to the 12 states, led by Texas Attorney General Ken Paxton, who filed the lawsuit against the guidance as litigation proceeded before the Fifth Circuit. The plaintiff states are Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah and Georgia as well as the Arizona Department of Education and Maine Gov. Paul LePage and Mississippi Gov. Phil Bryant on behalf of their states.
(The first name listed on that Nov. 23 brief was Benjamin Mizer, former principal deputy assistant attorney general for the civil division and of the hundreds of openly gay officials in the Obama administration.)
But the new three-page Trump administration brief, jointly Friday filed by Paxton and Justice Department officials withdraws the request for a partial stay pending appeal. Further, the brief calls for cancellation of oral argument scheduled Feb. 17 on that request, asserting “parties are currently considering how best to proceed in this appeal.”
Chad Griffin, president of the Human Rights Campaign, placed the blame of the brief seeking to undermine the transgender student protections squarely with Sessions.
“After being on the job for less than 48 hours, Attorney General Jeff Sessions has signaled his intent to undermine the equal dignity of transgender students,” Griffin said. “Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws. It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests. President Trump must immediately reverse course and direct the DOJ to uphold guidance protecting transgender students.”
Nowhere is Sessions’s name on the brief. The top names listed are Paxton on behalf of Texas and Acting Assistant Attorney General Chad Readler.
The Trump administration brief is consistent with a campaign promise from President Trump, who said in an interview with The Washington Post he’d rescind the Obama-era guidance prohibiting discrimination against transgender students, but “protect everybody.” The legal brief could be the Trump administration’s first step in complying with that campaign promise.
Even though the O’Connor order bars the U.S. government from asserting Title IX applies to transgender students, transgender advocates have insisted students are still able to sue on their own under that law if they feel they’ve experienced discrimination as a result of their gender identity.
The Justice Department makes this move one week after the White House issued a statement asserting Trump is “respectful and supportive of LGBTQ rights” and would keep in place a different Obama-era executive order barring anti-LGBT workplace discrimination against federal contractors.
UPDATE: The Fifth Circuit has granted the request from the Justice Department to cancel oral arguments in the case initially scheduled for Feb. 17.