Judge Blocks U.S. Rules on Trans Bathrooms

     (CN) — A federal judge in Texas has enjoined the Obama administration from enforcing an order requiring public schools to let transgender students use the bathrooms and locker rooms consistent with their gender identity.
     U.S. District Judge Reed O’Connor’s preliminary injunction came on the eve of the first day of classes at public schools across the nation.
     As students get acquainted with their new schedules, classmates and teachers today, O’Connor’s order saves educators from having to second-guess which bathrooms and locker rooms their transgender students should be using.
     The ruling does not stop schools that let transgender students use bathrooms and locker rooms of their choice from continuing that policy.
     Under the injunction, such students must use the facilities that correspond with the gender on their birth certificate, not the gender they now identify with.
     Texas and 12 other states sued the U.S. Departments of Education, Justice and Labor, and the Equal Employment Opportunity Commission. Two school districts, one in Texas and one in Arizona, joined as plaintiffs.
     They challenge the May 13 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 case turns on the text of Title IX, which was signed into law in 1972 by former President Richard Nixon and 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 claims the text is ambiguous and interprets the word “sex” to include discrimination based on gender identity, including transgender status.
     Texas counters that the government is creating the ambiguity so it can change the law according to its preferred policies.
     Another key federal regulation in the case is § 106.33, which was implemented after Title IX’s passage to clarify the law.
     It states: “A [federal education funds] recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
     O’Connor, a President George W. Bush-nominee, agreed with Texas that the statutes should be interpreted by their “ordinary meaning.”
     “The court concludes § 106.33 is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by [the Department of Education] following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth,” he wrote in a 38-page order.
     The Obama administration also argued that because the directive is only an interpretation of Title IX it is exempt from the Administrative Procedure Act, which requires substantive rule changes to go through a public notice-and-comment process.
     Texas claims the directive is clearly substantive because the government has threatened to revoke education funding for states that don’t comply with it. O’Connor also sided with the states on the issue.
     “The Guidelines are, in practice, legislative rules—not just interpretations or policy statements because they set clear legal standards. As such, defendants should have complied with the APA’s notice and comment requirement,” O’Connor wrote.
     The government asked O’Connor to limit the injunction only to states within the Fifth Circuit’s jurisdiction, which has authority over O’Connor’s court in Wichita Falls, Texas, but the judge applied it nationwide.
     Texas’ co-plaintiffs are Alabama, Arizona, Oklahoma, Louisiana, Wisconsin, West Virginia, Tennessee, Maine, Utah, Georgia, Mississippi and Kentucky.
     In early July another 10 states sued the government over the directive. They are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming.
     The ruling is the second victory in federal courts this month for opponents of the directive, many of whom cite religious grounds and the perceived safety threat to female students presented by allowing biological males in girls’ restrooms and locker rooms, as reasons they are against it.
     Early this month, the Supreme Court blocked a ruling from the Fourth Circuit that ordered a Virginia school board to let transgender student Gavin Grimm use the boys’ bathroom.
     The Supreme Court’s order put the school board’s old rules in place while it decides whether to hear the case.
     The ACLU urged school districts to ignore O’Connor’s injunction, claiming it ignores years of precedent.
     “A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination,” the ACLU said in a statement joined by Lambda Legal, National Center for Lesbian Rights, Transgender Law Center and GLBTQ Legal Advocates & Defenders.
     “The court’s misguided decision targets a small, vulnerable group of young people — transgender elementary and high school students — for potential continued harassment, stigma and abuse,” the groups added in the statement.
     The Justice Department said in a statement it was disappointed by the ruling and is reviewing its options.

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