Following a court order against Obama administration guidance ensuring transgender students have access to school restrooms consistent with their gender identity, Texas Attorney General Ken Paxton has issued guidance instructing schools to disregard “the unenforceable federal guidelines.”
In the three-page guidance delivered to education institutions in his state, Paxton says schools aren’t required to comply with the guidance as result of litigation he filed on behalf of 12 states and two schools districts.
“My office brought this lawsuit to stop the defendants from rewriting the laws that have been enacted by the elected representatives of the people — and to stop the defendants from threatening to take away federal funding from schools to force them to conform,” Paxton writes. “The injunction granted does precisely that.”
Although Paxton writes schools are under “no legal obligation to change their policies to allow students to use whatever intimate facility they choose,” he says state law restricts schools that decide to allow transgender students to use the public restroom in accordance with their gender identity.
“If an educational institution nonetheless voluntarily chooses to change its policies, the injunction does not prevent it from doing so — but it must comply with all applicable state laws when it makes that decision,” Paxton writes.
First, Paxton writes state law — as he noted in a recent opinion — “entrusts such policy decisions to elected boards rather than administrative staff.” Second, Paxton writes state law “imposes substantive duties” on schools establishing the role of parental involvement in their child’s education, such as granting parents access to all written records concerning their child.
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 were at risk of losing federal funds.
Late Sunday, U.S. District Judge Reed O’Connor issued an injunction that not only blocks enforcement of the guidance, but instructs the federal government to stop any interpretation of Title IX to include transgender protections. The U.S. Justice Department has yet to say whether it’ll appeal the decision, although such a move is expected.
The lawsuit filed by Paxton resulting in the order is one of three he filed against Obama administration initiatives on behalf of LGBT rights. On Wednesday, White House Press Secretary Josh Earnest said the administration “vigorously disagrees” with the litigation.
Rebecca Robertson, legal and policy director of the American Civil Liberties Union of Texas, said in a statement Paxton is “trying to mislead school districts about the law” in his latest letter.
“The order issued by a federal court in Wichita Falls, Texas does not affect school districts at all,” Robertson said. “As the attorney general knows, the order temporarily prevents the Obama administration from acting on the guidance it issued on Title IX’s applicability to transgender children. But school districts in Texas that already have inclusive policies to protect their transgender students are free to enforce them. Schools districts considering such policies are free to adopt them. And parents and students who want to challenge how their schools treat transgender kids are free to advocate — and to bring suit if necessary.”