(CN) – Quietly stepping back from its defense of an Obama administration directive for public schools to let students use bathrooms of their choice, the Justice Department signaled a pivot away from transgender rights under its new leader Jeff Sessions.
The U.S. Department of Justice was scheduled to argue on Valentine’s Day for a stay of a nationwide injunction that blocked former President Barack Obama’s May 13, 2016, directive ordering all schools that receive federal funds to classify students based on the gender they identify with, regardless of what's listed on their birth certificates.
The Justice Department often went to court to fight for transgender people’s rights under Obama’s attorney general, Loretta Lynch.
She compared the battle to the struggles of African-Americans in the 1960s to overcome institutional racism in the South, in a May 2016 speech announcing the government was suing North Carolina over House Bill 2, commonly called the “Bathroom Bill.”
Passed in March 2016, HB 2 bars North Carolina cities from passing laws to protect transgender people from discrimination and mandates that they use bathrooms that match their birth gender.
The U.S. Senate confirmed Sessions on Feb. 8 as attorney general. Sessions, a four-term U.S. senator for Alabama, left that job to take over as the country’s top law enforcement officer.
His views on transgender rights are apparently the polar opposite of Lynch’s. LGBTQ Nation, an online news outlet, reported on Friday that Sessions has a history of opposing gay and transgender rights.
Less than 48 hours after his confirmation, the Justice Department withdrew its motion to stay the injunction against Obama’s directive. In the motion, the department had asked the New Orleans-based Fifth Circuit to dial back the injunction so it only applied to the 13 states who sued over the directive.
“The parties are currently considering how best to proceed in this appeal,” the Feb. 10 withdrawal notice states.
A Justice Department spokeswoman declined Tuesday to say what its next step will be in the case.
The Lambda Legal Defense and Education Fund, a nonprofit that fights for the rights of LGBTQ people, filed an amicus brief in the case in support of the directive.
“It’s difficult to anticipate the Justice Department’s next move but I will say that in one fell swoop it abandoned its promise made by last attorney general Loretta Lynch to protect the most marginalized and targeted communities by canceling the oral argument that was scheduled for today,” Lambda Legal attorney Paul Castillo said in an interview.
“We do anticipate further attacks of LGBT individuals by this administration and anticipate rollback in rights. So we’re certainly prepared to fight that,” he added.
Texas and 12 other states sued the U.S. Departments of Education, Justice and Labor, and the Equal Employment Opportunity Commission in Wichita Falls, Texas federal court on May 25. Two school districts, one in Texas and one in Arizona, joined as plaintiffs.
On the Sunday before the first day of school in August, U.S. District Judge Reed O'Connor granted Texas a preliminary injunction. O’Connor, a George W. Bush appointee, later clarified the injunction applies to public schools throughout the nation.
The case turns on the text of Title IX, signed into law in 1972 by former President Richard Nixon. It states, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
The Obama administration said the text is ambiguous and interpreted the word "sex" to include discrimination based on gender identity, including transgender status.
But in siding with Texas, O'Connor said Title IX should be interpreted by its "ordinary meaning" and that "sex" means the "biological and anatomical differences between male and female students as determined at their birth," and does not encompass gender-identity discrimination claims.
The Texas Legislature is considering passing its own bathroom bill, despite warnings from business leaders that it could cost the state billions of dollars in tourist and convention revenue.
SB 6 would ban counties, cities and public schools from letting transgender people use bathrooms of their choice.
Local governments and school districts that defy the restrictions would expose themselves to potential lawsuits and stiff fines. The state attorney general could sue them for up to $1,500 for the first violation and $10,500 for subsequent violations, with each day out of compliance counting as a violation.
The bill would let private businesses set their own bathroom policies.
An upcoming U.S. Supreme Court hearing should provide some guidance on the legality of such laws.
“I think it’s a good bet the Justice Department is looking for what might happen in the oral arguments of the Gloucester County School Board v. Gavin Grimm case that’s scheduled for oral argument on March 28 before the U.S. Supreme Court. That may determine the course of what they do next,” Castillo said, citing a case in which the Supreme Court stayed a Fourth Circuit ruling requiring a Virginia school board to allow a transgender student to use the boys’ bathroom.
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