September 13, 2016 at 11:15 pm EDT | by Chris Johnson
DOJ seeks (even more) clarity on anti-trans court order
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The Justice Department is seeking clarification of an anti-trans court order.

Weeks after an order from a federal judge barring the enforcement of Obama administration guidance prohibiting discrimination against transgender students in schools, the U.S. Justice Department is seeking clarification of the order and arguing its scope should be limited.

In a 32-page filing — submitted Monday and signed by Principal Deputy Attorney General for the Civil Division Benjamin Mizer, who’s gay, and other U.S. attorneys — the Justice Department says the order could be construed “to extend well beyond the appropriate scope of potential relief” and seeks verification the order should be limited to the guidance.

“The preliminary injunction thus may have unintended effects on the ability of the executive branch to carry out the duties and obligations assigned to it by Congress in other settings, under other statutes, and outside the plaintiff states, and would undermine the agencies’ ability to protect individuals from forms of discrimination that are not at issue in this case,” the filing says.

Among other things, the filing calls on the court to clarify the order is limited to federal law on education, not employment; permits the federal government to urge courts to adopt its interpretation of civil rights law; and maintains activities at the Department of Labor. Additionally, the filing calls on the court to allow the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing workplace non-discrimination law, to perform duties to protect transgender people from discrimination.

“[T]he EEOC serves as a gatekeeper for an individual’s federal complaints of employment discrimination, because some of its actions in the administrative charge process have been deemed by the courts to be prerequisites to suit for charging parties,” the filing says. “Therefore, nonperformance of these actions by the EEOC could result in depriving individuals of their right to pursue relief on their own behalf in court.”

U.S. District Judge Reed O’Connor, an appointee of George W. Bush, issued the order against joint guidance from the Departments of Education and Justice prohibiting school discrimination against transgender students, including in restroom use, as a result litigation led by Texas Attorney General Ken Paxton on behalf of 12 states.

But the order in far-reaching language says the federal government is “enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.”

As a result of the request for clarification, O’Connor gave Paxton a deadline of Sept. 19 to file a response and the Justice Department a deadline of Sept. 23 to submit a reply.

The Justice Department filling comes on the heels of an earlier filing late last month from the Obama administration seeking clarification the order doesn’t bar the federal government from participating in litigation alleging anti-trans discrimination. Among these lawsuits is a case filed filed in March 2015 alleging the Southeastern Oklahoma State University discriminated transgender English professor Rachel Tudor because of her gender identity.

In a separate filing on Monday, Tudor seeks to intervene in the case on the basis that its outcome could affect her litigation against Southeastern Oklahoma State University.

“If this court determines that the Texas Injunction enjoins any aspect of the Oklahoma Litigation, then Dr. Tudor’s putative Complaint in Intervention raises a claim that shares with the main action a common question of law or fact insofar as she seeks relief from the Texas Injunction and any further efforts by Plaintiffs to re-litigate issues and otherwise interfere with proceedings in the Oklahoma Litigation,” the filing says.

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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