Reacting to the federal government’s complaint that a nationwide ban on the policy of protecting transgender people’s rights goes much too far, a federal judge in Fort Worth, Texas, has ruled that his authority does stretch all across the country. Since the government is in position to press its policy everywhere, the judge declared Tuesday, an order limited only to the 13 states that are suing the government would not be effective.
On August 21, U.S. District Judge Reed O’Connor issued a sweeping order to bar the government from relying on agency guidelines that treat discrimination based on sex as discrimination against people who identify as transgender — that is, they were identified as of one sex at birth but have come to identify as of the opposite sex. Since then, lawyers on both sides of the case have been dueling in legal briefs over the scope of that preliminary order, with the states’ lawyers viewing it as far broader than Justice Department lawyers do.
The federal lawyers have contended that the order could be read so broadly that it could raise constitutional problems, and thus needs to be clarified, and limited.
Responding, the judge issued a seven-page order partly clarifying what he meant, and narrowing it somewhat, while insisting that it had to be obeyed nationwide. He left some legal issues undecided at this point, and called for new legal briefs on those, to be filed within coming days.
The suing states have contended that the government is stretching the meaning of sex bias, as written into federal civil rights laws by Congress, to include discrimination against transgender people. Judge O’Connor has ruled, temporarily, that they are likely to win ultimately on that legal point, so he barred the use of that interpretation across the country.
He stressed in the new order that it only applies to access to “intimate facilities” — bathrooms, locker rooms, showers and the like. The government is forbidden, in that specific context, to claim that Title IX requires that transgender people have access to facilities for the gender with which they identify. (Title IX bars discrimination based on sex in education programs that receive federal funds)
The judge, however, narrowed his order to allow the government — when it has been sued — to offer that interpretation in defense against such lawsuits. And he allowed the government to make that argument if asked by the Supreme Court or by some federal appeals court for its views on the scope of Title IX.
He also made clear that the government may continue to use that argument in Title IX cases that were filed before he issued his order on August. But that exception does not allow it to start new cases on its theory, anywhere in the country. It also does not allow new investigations of schools getting federal funds, based on that interpretation.
The new order made clear that no federal agency is barred by the order from challenging other forms of discrimination, such as bias based on race, national origin or disability.
Based on the legal briefs filed by both sides so far, the judge said he was unable to resolve three other issues about the suing states’ plea for a further ban on enforcing the transgender policy. One issue is whether it should apply to workplace sex bias under another civil rights law — Title VII. Another is whether it should apply to any enforcement by the Labor Department or that department’s workplace safety agency (OSHA). And the third is whether the order should bar the use of every line of federal guidelines on transgender rights, or only selective parts that mandate opening sex-segregated intimate facilities to transgender people according to their gender identity.
Judge O’Connor ordered the government to file a new brief on those points by next Monday, with the suing states to file a reply by the following Friday.
The Supreme Court has not yet ruled on the new controversy over transgender rights, but it has before it an appeal by a county school board in Virginia seeking to challenge the federal policy after it was upheld by the U.S. Court of Appeals for the Fourth Circuit. The Justices considered that case at a private conference last week, but have yet to take any action on it.
That case is one that will not be affected by Judge O’Connor’s order, because it was well under way before he issued his injunction.
Once the Fort Worth judge finishes clarifying his order, the Justice Department is very likely to challenge it by appealing to the U.S. Court of Appeals for the Fifth Circuit. Federal attorneys have argued that the order violates the constitutional concept of separation of powers, by interfering deeply with the Executive Branch’s duty to enforce civil rights laws, and that it exceeds the reach of Judge O’Connor’s court.
