Surprising nobody, a federal judge in Texas issued an injunction Sunday barring the federal government from enforcing its guidelines protecting transgender kids in schools.
The injunction was a response to a lawsuit filed by Texas and about a dozen other states challenging guidance issued by the Departments of Education and Justice earlier this year. The guidance stated that Title IX’s nondiscrimination protections on the basis of “sex” protect transgender students in accordance with their gender identity, such that they must be allowed to use the bathrooms and play on sports teams that match their gender.
Texas Transgender Injunction (8-21)facilities which match their gender identity rather than their biological sex.3 Plaintiffs claim that on May 13, 2016…www.scribd.comJudge Reed O’Connor, a George W. Bush appointee whose anti-LGBT reputation precedes him, concluded Sunday that Texas had a strong case regarding the privacy of non-transgender students, and that the guidance should be blocked while the case proceeds. The decision largely considers, however, whether the administration enacted the guidance through the proper procedure, and it was not a final decision on the merits of the case:
This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school. The sensitivity to this matter is heightened because Defendants’ actions apply to the youngest child attending school and continues for every year throughout each child’s educational career. The resolution of this difficult policy issue is not, however, the subject of this Order. Instead, the Constitution assigns these policy choices to the appropriate elected and appointed officials, who must follow the proper legal procedure.
The scope of O’Connor’s order is vast. It dictates that the federal government can not intervene on behalf of trans students in any school nationwide. If the departments were already investigating claims of anti-trans discrimination, they must suspend those investigations immediately. In other words, so long as this injunction is in place, it’s as if the guidance protecting trans students doesn’t exist at all. It doesn’t, however, prevent schools from continuing to follow the guidance.
Last year, while the Supreme Court was still weighing the question of marriage equality, O’Connor halted implementation of a rule that would have guaranteed Family Medical Leave Act (FMLA) coverage for people in same-sex couples to care for their partners. Just like in the transgender guidance injunction, he believed then — mere months before the Supreme Court handed down Obergefell — there was a “substantial likelihood” that those challenging the guidance would prevail.
It seems pretty clear that Texas engaged in jurisdiction shopping to ensure O’Connor would hear this case. Among the plaintiffs in the suit is a school district in the jurisdiction where O’Connor is currently the only judge.
It’s expected that the Obama administration will immediately appeal.