A federal judge who ruled against the Obama administration’s guidance barring anti-transgender discrimination in schools, including for bathroom use, has clarified the scope of the order, asserting his decision applies nationwide.
U.S. District Judge Reed O’Connor, an appointee of former President George W. Bush, clarified on Tuesday the order against the trans student guidance applies nationwide and isn’t limited to the 12 states led by Texas Attorney General Ken Paxton that sued the Obama administration over the guidance.
“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate,” O’Connor writes. “Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide.”
But O’Connor clarifies the order doesn’t restrict the Obama administration’s mission to combat discrimination on race, national origin or disability under the relevant statutes, nor the same for the U.S. Equal Employment Opportunity Commission, the agency that enforces federal civil rights employment law.
“Defendants are simply prevented from using the Guidelines to argue that the definition of ‘sex as it relates to intimate facilities includes gender identity.” O’Connor writes. “The Court’s preliminary injunction neither affects EEOC’s fulfillment of its statutory duties, nor Defendants’ ability to enforce anti-discrimination statutes nationwide. The injunction does not affect those programs addressing discrimination on the basis of race, national origin, or disability.”
O’Connor adds his injunction also doesn’t impair “a school’s obligation to investigate and remedy student complaints of sexual harassment, sex stereotyping, and bullying.”
In the aftermath of Connor’s initial order in August, the U.S. Justice Department first sought clarification on whether the order restricts its ability to assist in litigation against anti-trans discrimination, such as the case it filed against Southeastern Oklahoma State University, and again on whether it applies nationwide or interferes with other work within the Obama administration.
In his clarification, whether the guidance is enjoined in total or whether the principal of severability applies to the ruling, whether Title VII is implicated by this injunction and whether the injunction applies to Occupational Safety & Health Administration or Labor Department activity. On these issues, O’Connor orders the states to respond by Monday and the Justice Department to respond by Oct. 28.
The litigation is the result of 12 states suing the Obama administration for guidance issued in May warning schools that discriminating against transgender students, including denying them access to the restroom consistent with their gender identity, amounts to discrimination under Title IX of the Education Amendment of 1972.