August 22, 2016 at 11:40 am EDT | by Chris Johnson
Judge blocks guidance on bathroom access for trans students
A federal judge has blocked guidance from the Obama administration on behalf of trans students.

A federal judge has blocked guidance from the Obama administration on behalf of trans students.

A federal judge has blocked the enforcement of guidance from the Obama administration prohibiting schools from discriminating against transgender students, including denying them access to public restrooms consistent with their gender identity.

U.S. District Judge Reed O’Connor, an appointee of former President George W. Bush, issued the preliminary injunction late Sunday in response to a lawsuit filed in May by Texas Attorney General Ken Paxton on behalf of 12 states and two school districts.

In the 38-page order, O’Connor writes the case “presents the difficult issue of balancing” the rights of transgender students and privacy concerns, but he nonetheless sides with states suing the Obama administration.

“The sensitivity to this matter is heightened because defendants’ actions apply to the youngest child attending school and continues for every year throughout each child’s educational career,” O’Connor writes. “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.”

In May, the Departments of Justice and Education said schools are barred from discriminating against transgender students, including in bathroom use, under the prohibition of gender bias in Title IX of the Education Amendments of 1972. That means schools refusing to allow transgender students to use the restroom consistent with their gender identity are at risk of losing federal funds.

The court order doesn’t devote significant discussion to why transgender students should be subjected to schools barring them from restroom use consistent with their gender identity, but cites the intent of Congress in passing Title IX and portions of the law that allow schools to segregate students by gender.

“Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex,” O’Connor writes.

Critics say Paxton and the states he represents lacked standing to sue the Obama administration over the guidance, but O’Connor writes they’re able to sue because the guidance is “clearly designed to target plaintiffs’ conduct.”

“Guidelines will force plaintiffs to consider ways to build or reconstruct restrooms, and how to accommodate students who may seek to use private single person facilities, as other school districts and employers who have been subjected to Defendants’ enforcement actions have had to do,” O’Connor writes. “That the guidelines spur this added regulatory compliance analysis satisfies the injury in fact requirement.”

O’Connor writes the injunction “should apply nationwide” and states that don’t wish to comply with the order “can easily avoid doing so by state law that recognizes the permissive nature.” The injunction, O’Connor writes, shouldn’t interfere with similar cases pending before federal courts on transgender bathroom use and “parties should file a pleading describing those cases so the court can appropriately narrow the scope if appropriate.”

Kasey Suffredini, chief program officer for Freedom for All Americans, called the ruling a “step back for transgender protections,” criticizing O’Connor for the decision and refusing to hear from a single transgender student during court proceedings.

“It is shameful that opponents of equality have forced this lawsuit forward in an attempt to make transgender Americans pawns in a political game; but this ruling will not stand the test of time,” Suffredini said. “All transgender Americans – particularly transgender youth – deserve to be treated with dignity and respect. No singular court ruling negates the right of all Americans to receive equal treatment under the law – that’s one of our nation’s founding values.”

Paxton in a statement after the ruling said the plaintiff states are “pleased” with the decision and it restricts “the Obama administration’s 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. “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.”

Dena Iverson, a spokesperson for the U.S. Justice Department, said the Obama administration is considering the order and whether to appeal to the U.S. Fifth Circuit Court of Appeals.

“The department is disappointed in the court’s decision, and we are reviewing our options,” Iverson said.

White House Press Secretary Josh Earnest referred to the Justice Department for “the next steps” after the order, but said the administration would be “respectful” of court decisions on the guidance.

“It certainly was not a mandate, and was never described as such by the administration,” Earnest said. “I know it was described that was by some of our critics, but, look, I recognize that there are people who are eager to play politics with an issue like this just a few months before a national election, but the focus of the administration has been on practical problem-solving, and we’ve effective with school districts across the country to try to help them to address this complicated issue.”

Given the broad nature of the litigation — which sought not only to bar enforcement of the Obama administration guidance, but general enforcement of federal laws against gender discrimination to protect transgender people — the nature of the injunction is sweeping and one that defies years of legal precedent establishing transgender discrimination amounts to gender discrimination.

Five civil rights organizations that had submitted a friend-of-the-court brief in the lawsuit – Lambda Legal, American Civil Liberties Union and ACLU of Texas, National Center for Lesbian Rights, Transgender Law Center and GLBTQ Legal Advocates & Defenders — issued a joint statement in the aftermath of the injunction saying nothing has changed.

“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 statement says. “This unfortunate and premature ruling may, however, confuse school districts that are simply trying to support their students, including their transgender students. So let us make it clear to those districts: your obligations under the law have not changed, and you are still not only allowed but required to treat transgender students fairly.”

The statement also criticizes O’Connor for a decision the organizations say “targets a small, vulnerable group of young people – transgender elementary and high school students – for potential continued harassment, stigma and abuse.”

This ruling isn’t the first anti-LGBT decision made by O’Connor. Prior to the U.S. Supreme Court decision last year in favor of same-sex marriage nationwide, O’Connor issued an injunction allowing married same-sex couples to access benefits under the Family & Medical Leave Act in states without marriage equality.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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