The Department of Justice on Thursday appealed a nationwide injunction a federal judge issued this week against the Obama administration's directive that public schools let transgender students use the bathrooms of their choice.
Texas and 12 other states sued the U.S. Departments of Education, Justice and Labor, and the Equal Employment Opportunity Commission in Wichita Falls Federal Court on May 25. Two school districts, one in Texas and one in Arizona, joined as plaintiffs.
They challenged the May 13 federal 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.
On the Sunday before the first day of school in August, U.S. District Judge Reed O'Connor granted Texas a preliminary injunction. He clarified in an order Wednesday that the injunction applies to school districts throughout the nation.
O'Connor, a George W. Bush appointee, tempered Wednesday's order by saying it does not affect any litigation involving alleged discrimination against transgender people that was underway before he entered the preliminary injunction in August.
"The Court seeks to avoid unnecessarily interfering with litigation concerning access to intimate facilities that was substantially developed before the court's order granting the preliminary injunction," the order states.
The case turns on the text of Title IX, signed into law in 1972 by 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 says the text is ambiguous and interprets 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.
Plaintiff states include Alabama, Arizona, Oklahoma, Louisiana, Wisconsin, West Virginia, Tennessee, Maine, Utah, Georgia, Mississippi and Kentucky.
In an amicus brief, the Lambda Legal Defense and Education Fund accused the states of "forum shopping" to get around rulings by U.S. circuit courts that have authority over their states. The American Civil Liberties Union joined in the amicus brief with Lambda, a nonprofit that fights for the rights of gay, lesbian and transgender people.
"Each of the relevant circuits (the Fourth, Sixth, Ninth, and Eleventh Circuits) has ruled that the prohibition of sex discrimination includes discrimination against transgender individuals," the brief states.
The federal government appealed to the New Orleans-based Fifth Circuit, which has jurisdiction over Texas, Louisiana and Mississippi, and is widely regarded as the nation's most conservative appellate court.
Lambda Legal attorney Paul Castillo told Courthouse News the injunction does not mean that public schools have to change transgender-friendly policies.
"The preliminary injunction issued by Judge O'Connor does not require schools to discriminate against transgender students. ... School districts that continue to discriminate and hide behind the preliminary injunction still face a high prospect of litigation by transgender students who are harmed by the discriminatory policy," Castillo said in an email.
To show that the injunction is not stopping Lambda Legal from defending transgender students, Castillo cited a lawsuit the nonprofit filed this month in the Western District of Pennsylvania. Three students there claim a suburban Pittsburgh school district buckled to pressure from anti-LGBT groups and changed a "longstanding, effective and inclusive bathroom policy," Lambda Legal said in a statement Thursday.
Castillo added that Judge O'Connor's injunction is not swaying other federal courts from finding that such policies violate Title IX.
"Notably, since the preliminary injunction was issued on August 21, three federal courts have sided with transgender students in their respective lawsuits and finding that those students are likely to succeed because Title IX requires districts to allow transgender students to use a restroom consistent with their identity," Castillo said.
The federal government is also involved in a court battle with North Carolina over House Bill 2, which the Tar Heel State's Republican-controlled Legislature passed in March in response to a Charlotte city ordinance that expanded non-discrimination policies and said that transgender people can use the bathrooms they want.
Under H.B. 2, people must use restrooms matching the gender on their birth certificates in schools and many public buildings. It also excludes sexual orientation and gender identity from state anti-discrimination laws.
North Carolina officials are defending the law despite its impact on the state's economy.
The National Basketball Association moved its 2017 All-Star game to New Orleans from Charlotte, and PayPal nixed its plans to open an office in Charlotte, in response to H.B. 2.