White House Press Secretary Josh Earnest was cagey Friday on the Obama administration’s enforcement of Title IX in the aftermath of a court order against federal guidance instructing schools not to discriminate against transgender students, including in bathroom use.
Under questioning from the Washington Blade, Earnest said he was unaware of a letter from Texas Attorney General Ken Paxton — who led the lawsuit against the guidance — informing schools not to comply with the Obama administration in the aftermath of the order.
“I haven’t seen the specific letter,” Earnest said. “The guidance that was issued by the Department of Education was in response to schools and school districts and school administrators from across the country seeking the expertise of officials at the Department of Education about the most effective way to implement policies that protect the safety and dignity of all their students.”
But Earnest took a veiled jab at Paxton without mentioning the attorney general by name, saying unlike elected officials, school administrators “don’t have the luxury of playing politics.”
“Unfortunately, I don’t think everybody shares the administration’s commitment to prioritizing the safety and wellbeing of all of America’s students over politics,” Earnest said. “Some politicians choose to do it the other way around, and that’s unfortunate.”
The sweeping court order issued on Sunday by U.S. District Judge Reed O’Connor not only bars enforcement of the guidance, but instructs the federal government to stop any interpretation of Title IX of the Education Amendment of 1972 to include protections for transgender people. Defying legal precedent finding legal protections for transgender people under current law, O’Connor writes the injunction “should apply nationwide.”
But Earnest said he’s unable to say whether the Obama administration is enforcing Title IX — and civil rights law in general — the same way in the aftermath of the ruling.
“I can’t speak to any individual enforcement action, I can just say in general that the Obama administration has been committed to ensuring the rights of all Americans are protected,” Earnest said. “And that has been a consistent goal that we have pursued since day one of the Obama administration, and it’s a goal that we’re going to continue to pursue until the very last day.”
Pressed by the Blade for an explanation on why he couldn’t speak to enforcement actions, Earnest cited ongoing litigation on the matter.
“As you know, this is a topic of vigorous dispute in a court of law, and so I certainly don’t want to say anything that’s going to influence the ability of the Department of Justice to make that argument,” Earnest said.
The U.S. Justice Department is expected to appeal the ruling to the U.S. Fifth Circuit Court of Appeals, although as of late Friday the department has filed no notice of appeal.
Earnest said he was unaware to provide an explanation for why the Justice Department has yet to appeal the decision even though its contrary to the position of the Obama administration.
“I’m not aware of the latest on the decision-making process at the Department of Justice, but I’m sure they can update you on our legal strategy moving forward,” Earnest said.
Late Thursday, a Justice Department spokesperson told the Washington Blade in response to questions on enforcement and timing for appeal the department continues to review its options in the aftermath of the order.
Also on Friday, the American Civil Liberties Union of Texas sent a letter to schools saying regardless of the court order, Title IX continues to protect transgender students.
Rebecca Robertson, legal and policy director of the American Civil Liberties Union of Texas, said school administrators “deserve better legal advice” than what Paxton offered.
“To be clear, public schools are not party to the lawsuit filed by the State of Texas in federal court in Wichita Falls and they aren’t subject to the preliminary injunction that prevents the Obama administration from acting on its guidance regarding Title IX,” Robertson said. “School districts in Texas that already have inclusive policies to protect their transgender students are free to enforce them. School districts considering such policies are free to adopt them. School districts that do not have appropriate policies under Title IX risk being sued by transgender students who experience discrimination.”