Despite a request from the U.S. Justice Department for a stay pending appeal, U.S. District Judge Reed O’Connor declined on Tuesday to halt his decision against guidance from the Obama administration prohibiting schools from discriminating against transgender students.
In a six-page decision, O’Connor ruled he won’t grant a stay on his ruling against the guidance — which also requires schools to allow transgender students to use the restroom consistent with their gender identity — on the basis the Obama administration is unlikely to succeed on appeal and won’t suffer irreparable injury.
“The federal statutes prohibiting discrimination on the basis of ‘sex’ — the scope and meaning of which Defendants claim now includes gender identity — were promulgated more than forty years ago,” O’Connor writes. “The federal government did not articulate, much less enforce, the Guidelines’ interpretation of sex as including gender identity for nearly fifty years after Title VII was passed in 1964 and the Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the Guidelines delayed until their legality is established.”
The George W. Bush-appointed judge issued the nationwide injunction against the guidance as a result of litigation filed by Texas Attorney General Ken Paxton on behalf of 12 states and two school districts. The Justice Department has appealed the order to the U.S. Fifth Circuit Court of Appeals.
Mat Staver, chair of the anti-LGBT Liberty Counsel, hailed in a statement O’Connor’s decision to keep his order against the guidance in place as the litigation is appealed.
“We applaud Judge O’Connor’s steadfast stand against the Obama administration attempts to impose its unlawful and harmful LGBT agenda on public schools,” Staver said. “The Obama directive is a lawless act and defies common sense.”
The issue behind the litigation may soon become moot. President-elect Donald Trump made rescinding the guidance a campaign promise.