September 1, 2016 at 5:00 pm EDT | by Chris Johnson
DOJ seeks clarification on order against trans student guidance
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The Justice Department is seeking clarification of a court order.

Following a court order blocking the Obama administration’s recent guidance warning schools not to discriminate against transgender students, including in bathroom use, the U.S. Justice Department is seeking clarification on the breadth of the order.

U.S. District Judge Reed O’Connor, who issued the order last week in response to a lawsuit filed by Texas Attorney General Ken Paxton on behalf of 12 states, ordered additional briefings from both the federal government and states involved in the case.

The request from the Justice Department comes amid questions about whether the Obama administration will continue to enforce federal civil rights law to prohibit anti-trans discrimination in the aftermath of the sweeping order, which enjoined the federal government from interpreting the prohibition of gender discrimination under current civil rights law to apply to transgender people.

In a seven-page filing on Tuesday signed by Principal Deputy Assistant Attorney General for the Civil Division Benjamin Mizer, who’s gay, and other U.S. attorneys, the Justice Department seeks clarification on whether the administration can continue to participate in ongoing litigation alleging anti-trans discrimination.

“Defendants understand that in such cases they are permitted to comply with all deadlines and court orders, file appeals as necessary, and continue to participate as an amicus or interested party,” the filing says.

The filing broadly describes all cases in which the Justice Department is involved, but draws attention to one in particular: The lawsuit the Justice Department filed in March 2015 against the Southeastern Oklahoma State University, which alleged the school violated Title VII of the Civil Rights Act of 1964 by discriminating and terminating dismissed transgender English professor Rachel Tudor based on her gender identity.

“There is a pressing need to proceed in Southeastern Oklahoma State University so that pre-trial deadlines and the scheduled trial are not unduly delayed,” the filing says. “Although defendants do not believe that the case is intended to be covered by this court’s preliminary injunction, the Department of Justice has halted its discovery out of an abundance of caution.”

The filing says the Justice Department will seek a stay in that case “pending confirmation that proceedings in that case are not enjoined by this court’s order,” but without immediate confirmation “there will likely be substantial disruption” in the schedule for the litigation.

In response to the order, O’Connor scheduled additional briefings in the case, setting a deadline of Sept. 9 for the Texas attorney general and a deadline of Sept. 14 for the Obama administration to file a response.

O’Connor’s initial order was in response to litigation states filed against joint guidance from the Departments of Justice and Education instructing schools that federal law prohibits them from discriminating against transgender students, including by barring them from restrooms consistent with their gender identity. Defying legal precedent, the order blocked the guidance on the basis that the Obama administration was misreading Title IX of the Education Amendments of 1972.

The Justice Department has yet to file an appeal of the order against the transgender student guidance to the U.S. Fifth Circuit Court of Appeals. The filing says the Justice Department plans on filing “a motion seeking relief with respect to the court’s preliminary injunction.” It’s unclear whether that’s a request for reconsideration or a request for a stay, but it might be a precursor to an appeal.

The Justice Department has refused to articulate whether it’ll continue to enforce civil rights law to protect transgender people in the aftermath of the court order despite multiple requests from the Washington Blade to clarify. Last week, White House Press Secretary Josh Earnest was non-committal on the Obama administration’s enforcement of Title IX following O’Connor’s order.

As Buzzfeed reported, although the states sought an order barring the federal government from enforcing both Title IX and Title VII of the Civil Rights Act of 1964 to protect transgender people, the court only issued an injunction on the former. That would suggest the Obama administration can continue to enforce the law with respect to transgender workers, but not transgender students.

Jon Davidson, legal director for Lambda Legal, said he thinks the Justice Department “may be waiting” for the judge’s decision in response to the request for clarification before announcing how the federal government will continue to enforce the law.

“They are continuing to press quite actively for enforcement of those statutes in the United States v. North Carolina lawsuit (the one consolidated for discovery purposes with Lambda Legal’s and the ACLU’s Carcaño v. McCrory challenge to HB2), notwithstanding the preliminary injunction issued by Judge O’Connor,” Davidson said.

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

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