Ruling that the Obama administration has violated federal laws against sex bias in education, a federal judge in Fort Worth, Texas, on Sunday night issued a sweeping, nationwide order against the policy on the rights of transgender students.
U.S. District Judge Reed O’Connor, rejecting all of the arguments of government lawyers in favor of that policy, refused to confine the enforcement ban to the 13 states and two local school districts that had sued to challenge the policy.
Under the judge’s order, transgender students at all levels – kindergarten through college — will have to use restrooms, locker rooms, housing and other “intimate facilities” based on their gender at birth, not on the gender that they have accepted as theirs. The government policy required equal access based on gender identity.
Because other federal courts are considering other cases on the legality of the policy, Judge O’Connor said he would later consider narrowing down his order, so as not to intrude on the review other courts are making. He told both sides to notify him of where other cases are pending.
For now, his enforcement ban applies to all federal agencies and bars the government from taking any action to protect transgender students under Title IX, a 1972 law that bans sex bias in federally funded education. The challenging states and school districts had also challenged the government’s view about the meaning of Title VII, a 1964 law that bars sex discrimination in workplaces across the nation, but the final order only applies to Title IX enforcement..
There were two legal foundations for the judge’s order, both involving the federal Administrative Procedure Act: first, the Obama administration’s view that sex bias also includes bias against transgender people was adopted without notifying the public and seeking comment, and, second, that view is directly contrary to what Congress had written into Title IX. That law, the judge declared, limits discrimination based on sex to bias based on biological sex – that is, the physical characteristics of being male and female at birth.
Congress, the judge declared, did not contemplate the status of transgender people in schools – that is, people who are assigned one gender at birth, but later accept themselves as of the opposite gender.
Judge O’Connor’s view directly contradicts a ruling by the U.S. Court of Appeals for the Fourth Circuit, in a Virginia case involving a 17-year-old high school student who is transgender. But the Fort Worth judge noted that the Supreme Court has recently blocked, temporarily, the Fourth Circuit Court’s ruling, awaiting an appeal by the school board in that case.
The Obama administration has the option of challenging the nationwide order issued by Judge O’Connor, first in the U.S. Court of Appeals for the Fifth Circuit and, beyond that, in the Supreme Court.
The Obama administration had tried to persuade Judge O’Connor that its view on what Title IX covers was only advisory and imposed no binding legal duties on schools in the 13 states and two local districts that had sued. The judge disagreed, noting that the government is actively seeking to enforce its Title IX policy in a case now pending in a federal trial court in Winston-Salem, N.C.
Before deciding that the administration policy was illegal under the Administrative Procedure Act, the Fort Worth judge rejected all of the procedural challenges that Justice Department lawyers had raised in seeking to head off the kind of order the judge has now issued.
No part of the case before Judge O’Connor involves constitutional issues; the nationwide controversy now unfolding over transgender rights is focused – at least for the time being – on the meaning of Title IX, and how the government interprets it. A separate strand of the controversy applies to sex discrimination in the workplace under Title VII.
Judge O’Connor’s nationwide ban on enforcement of the administration’s view on transgender students’ rights is similar to the across-the-nation ban that another federal judge in Texas previously imposed to block President Obama’s broad attempt to postpone the deportation of upwards of four million undocumented immigrants. The Supreme Court, during its last term, split 4-to-4 on the immigration policy dispute, thus leaving intact a nationwide injunction against its enforcement.
In the immigration case, the administration has asked the Supreme Court to reconsider its divided order on the policy. If the normal schedule of considering such requests is followed, the Justices may act on that request as early as this Friday.
Also, in that case, the federal judge – Andrew S. Hanen of Brownsville – is to meet with lawyers for both sides on August 31 to consider the next steps toward an actual trial on the legality of the policy.
This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.