U.S. District Judge Reed O'Connor has made himself perfectly clear: An order he issued in August to stop the Obama administration from enforcing guidelines that would push school districts to allow transgender students to choose which restroom and locker rooms they use applies everywhere in the U.S.
Texas Attorney General Ken Paxton is pretty pleased about that; he bragged about it on Twitter.
Texas won't set idly by as President Obama continues to ignore the Constitution. https://t.co/RnB6v6xnLo— Ken Paxton (@KenPaxtonTX) October 19, 2016
Unfortunately for Paxton and other conservative defenders of cisgender norms in public school toilet stalls, people on the other side of the issue aren't sitting idly by either, and in some cases, they're winning. We'll explain that in a bit, but first some background. The Obama administration contends Title IX of the federal education code, part of which prohibits discrimination based on sex in school facilities, extends to protecting transgender students when it comes to choosing which of those facilities to use.
Thirteen states, including Texas, disagreed enough to take the administration to O'Connor's court. They claim that when Congress passed the law banning sex discrimination in 1972, it was referring to the 1972 understanding of sex — boys will be boys, and girls will be girls, full stop, just like it says on their birth certificates.
O'Connor's injunction blocks the administration from acting on a more expansive view of gender when it comes to Title IX, at least until the suit brought by the 13 states goes to trial. That means the Education Department and the Justice Department can't bring enforcement action when it comes to transgender discrimination in school facilities. The victims of discrimination, however, are still free to sue schools as individuals. And they are.
In September, Justice Department lawyers filed a motion for clarification, asking O'Connor if he really meant it when he said his word was good nationwide and expressing doubts about whether he had the authority to reach outside the 13 plaintiff states to bind the administration's hands.
"Although the Court stated that the, 'injunction should apply nationwide,' ... the relief afforded seems to be limited to the plaintiff states, at least in some respects," Justice Department lawyers wrote. "If the Preliminary Injunction were to be read more broadly, to encompass non-plaintiff states, it would run afoul of the Supreme Court’s admonition that an injunction 'should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.'”
O'Connor's answer came back Tuesday. Essentially, he replied, "Yes, I did mean it, and yes, I can do it." He cited appellate and Supreme Court rulings to back his hand on the scope of the injunction. But, the judge also made it clear that his ruling is limited to the feds' role in the question of facilities for transgender students, though he wants to see more arguments from both sides before deciding whether his order should extend to claims under Title VII. That federal law prohibits workplace discrimination — a potential issue in cases in which transgender school employees share restrooms with students. Most important, his injunction doesn't protect states and local districts that want to change their own rules about who can use what bathroom.
So, it didn't stop three transgender students, two girls and a boy, from suing the Pine-Richland School District in Pennsylvania earlier this month after the district reversed a longstanding policy and passed a rule requiring students to use the bathrooms corresponding to the sex listed on their birth certificates. Their case, filed in Pittsburgh, is supported by Lamba Legal, a national LGBT advocacy organization.
"There's still exposure to school districts that try to hide behind this [O'Connor's] ruling," says Paul Castillo, staff attorney in the South Central Regional Office of Lambda Legal in Dallas.
Since O'Connor issued his preliminary injunction, three federal courts analyzing the same federal law have sided with transgender students, Castillo says. Courts in Ohio and Wisconsin granted injunctions sought by students who are transgender. And Tuesday, a federal magistrate judge in Illinois recommended that a U.S. District Court there deny an injunction requested by a group seeking to stop a local district from allowing transgender students to continue to use the restroom that matches their identity. That case also tried to enjoin the Obama administration from enforcing its guidelines.
In the Illinois case, the magistrate included a footnote that mentioned O'Connor's order, which it describes as "a relatively conclusory analysis that this court finds unpersuasive."
So, O'Connor's clarification was at best a qualified victory for Paxton and 12 other state attorneys general (and Castillo expects the Justice Department to appeal). Still, a win is a win, such as it is, and Paxton was pleased, according to a statement on his office's website.
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“I am proud to lead a coalition of 13 states against the Obama Administration’s latest illegal federal overreach," Paxton stated. "The court’s reaffirmation of a nationwide injunction should send a clear message to the president that Texas won’t sit idly by as he continues to ignore the Constitution. The president cannot rewrite the laws enacted by the elected representatives of the people and then threaten to take away funding from schools to force them to fall in line.”
O'Connor's recent ruling and the motion from the Justice Department that prompted it are below.