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Federal judge blocks Obama’s rules on bathrooms for transgender students

By Tom Benning Associated Press

AUSTIN, Texas – A federal judge has temporarily blocked the Obama administration’s instructions for public schools to accommodate transgender students, siding late Sunday with Texas and a dozen other states that challenged the contentious guidelines for bathrooms and other facilities.

U.S District Judge Reed O’Connor of Fort Worth, in issuing a nationwide preliminary injunction, said that federal officials didn’t follow proper procedures in creating the directives. He said the guidelines contradicted existing statutes and regulatory texts.

And he appeared to agree with Texas’ assertion that the guidelines “hold a gun to the head” of local school districts.

“The information before the court demonstrates defendants have ‘drawn a line in the sand’ in that they have concluded plaintiffs must abide by the guidelines, without exception, or they are in breach of their . obligations,” he wrote in a 38-page order.

The decision is a blow for the Obama administration, which had said that schools should allow transgender students to use bathrooms that match their gender identity.

Federal officials had defended their interpretation that the word “sex” in anti-discrimination statutes also covers “gender identity.” They also argued that the lawsuit was filed too soon, because the transgender policy isn’t binding and enforcement action hasn’t been taken.

Attorneys representing Texas, however, said the guidelines would force school districts “to mix the sexes in intimate areas.” They said the federal policies “obliterate” past rules, putting Texas and other states at risk of losing millions of dollars in education funding.

Texas Attorney General Ken Paxton said Monday that he was pleased with the decision “against the Obama administration’s latest illegal federal overreach.”

“This president is attempting to rewrite the laws enacted by the elected representatives of the people, and is threatening to take away federal funding from schools to force them to conform,” Paxton said in a written statement.

Justice Department spokeswoman Dena Iverson said the “department is disappointed in the court’s decision, and we are reviewing our options.” And transgender advocates, while decrying the ruling as dangerous, predicted that it would be just a temporary setback.

“One judge in a district court is simply a bump on the road,” said Paul Castillo, a staff attorney for Lambda Legal, an LBGT rights group that filed a “friend of the court” brief in this case. “Any adverse decision on this is an outlier, based on other decisions that have been issued.”

The preliminary injunction, which comes as school starts in Texas, applies all across the country. But other courts in the U.S. have tackled similar questions differently, and experts said the order doesn’t prevent schools from having the policies encouraged by the federal government.

Even O’Connor, an appointee of Republican President George W. Bush, cautioned in his order that “resolution of this difficult policy issue” is not final.

“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized,” he wrote.

The battle over transgender rights has emerged as a new front in America’s culture wars, with an outsize portion of the attention focused on bathrooms.

Social conservatives, who’ve cast the issue in terms of safety, have pursued the fight in various arenas. Just last week, they claimed victory over Target and its transgender policy after the big box retailer announced it would spend $20 million to add single-stall bathrooms to its stores.

“Clearly, Target has responded to the nationwide outcry against this ridiculous policy,” Texas Lt. Gov. Dan Patrick said last week in a fundraising appeal.

But the debate has only sharpened with the inclusion of schools, as seen by the stir created this year by the Fort Worth school district’s more inclusive transgender policy. And no matter the venue, LGBT advocacy groups say they are seeking to protect essential rights.

“Transgender Texans, and in particular transgender kids, must be afforded the most basic dignity to use the bathroom,” Chuck Smith, chief executive of Equality Texas, said in a news release on Monday.

At the center of the latest legal dispute is Harrold Independent School District, a tiny Texas district of about 100 students near the Oklahoma border.

The district rose to prominence after the U.S. Education and Justice departments in May – after a separate legal battle over the matter in North Carolina – explained what schools should do to ensure that there is no discrimination against transgender children.

The directive, while nonbinding, left little doubt that federal funds could be at stake.

As top Texas Republicans sprung into action, Paxton’s office recruited Harrold ISD to be the lawsuit’s lead plaintiff. Though Superintendent David Thweatt isn’t aware of any transgender students in the district, the district affirmed a policy of limiting restroom use by biological sex.

Texas was ultimately joined in the lawsuit by Alabama, Arizona, Georgia, Louisiana, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, along with the Republican governors of Kentucky, Maine and Mississippi.

Much of the disagreement can be distilled to the word “sex,” as it’s used in the anti-discrimination statutes known as Title IX and Title VII. Title IX – arguably most well-known in the context of collegiate sports – focuses on education, while Title VII addresses employment.

The Obama administration has argued that ambiguity in the law over the definition of “sex” gives federal officials the ability to interpret it as including “gender identity.” Justice Department attorney Benjamin Berwick this month described the matter as “an emerging issue.”

“Gender is a sex-based characteristic,” he told O’Connor at a hearing in Fort Worth.

But Texas officials countered that the plain meaning of the law refers only to sex – biological sex. And O’Connor agreed, saying the feds didn’t pursue the proper process to make a change of such substance.

“A definition that confuses instead of clarifies is unpersuasive,” O’Connor wrote in his order.

The more immediate question fueling the preliminary injunction, however, was whether Texas and others faced immediate “irreparable harm.”

Federal officials stressed that the transgender guidelines didn’t carry the force of law. Arguing that the lawsuit was actually filed prematurely, Berwick said this month that the plaintiffs “have identified no action being taken against them.”

But Austin Nimocks, a Texas associate deputy attorney general said the guidelines are indeed “coercive because they place into jeopardy a very substantial sum” of federal education dollars. And again, O’Connor agreed.

“Although defendants have characterized the guidelines as interpretive, post-guidance events and their actual legal effect prove that they are ‘compulsory in nature,’” he wrote.

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