Obama’s Transgender Bathroom Directive Still Blocked ‘Nationwide’

Sara D. Davis/Getty Images
Sara D. Davis/Getty Images

A federal judge has rejected the Obama Administration’s request to stay part of an injunction blocking the President’s transgender public school policy. The federal government wanted the Court to rule that the block against Obama’s directive to have a gender fluid school bathroom and facilities policy applied only to the 13 states that brought the lawsuit against the federal government.

As reported by Breitbart Texas on October 21, the federal judge ruled that a preliminary injunction against the Obama directive governing transgender access to public school restrooms applied nationwide.

The injunction was issued on August 21, as reported by Breitbart Texas. On September 16, the federal government filed a Motion for Clarification. The judge issued the order on October 19 after the Court conducted a hearing on September 30 to clarify the Court’s preliminary injunction in the case. One of the questions posed to the Court was the geographic scope of the Court’s preliminary injunction.

U.S. District Judge Reed O’Connor turned down the Obama Administration’s request to apply it only to the 13 states involved in this litigation, and stay, pending appeal, the preliminary injunction’s application to states and entities not plaintiffs in this case.

“No amount of legal gamesmanship can alter the fact that Title VII’s plain language does not grant the Department of Education the power to foist novel theories of gender identity onto Texas schools,” Texas Attorney General Ken Paxton said. “President Obama has made it his administration’s policy to bypass Congress whenever the democratic process resists his call for radical social change. My office will continue to push back against executive overreach until the president learns to respect the Constitution.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on sex. Title IX protects people from discrimination based on sex in education programs or activities. The law applies to those schools and institutions, including local school districts, 7,000 post-secondary institutions, charter schools, for-profit schools, libraries, and museums, that receive federal financial assistance.

The conflict began when on May 13, the Department of Education (DOE) Assistant Secretary for Civil Rights, and the Department of Justice (DOJ) Principal Deputy Assistant Attorney General for Civil Rights, sent a “Dear Colleague Letter on Transgender Students” to state and local agencies that receive federal financial assistance from the DOE. The Office of Civil Rights in the DOE joined with the DOJ and sent a letter which they represented should serve as “significant guidance” to school districts.

As reported by Breitbart Texas, the Texas Attorney General sued the U.S. Department of Education, the U.S. Department of Justice, and other federal agencies and officials for commanding that Texas public schools open restrooms and locker rooms to both sexes.

Texas Attorney General Ken Paxton represents a 13-state coalition in the federal lawsuit in the Northern District of Texas. Texas and the other states that joined are challenging the Obama Administration’s directive forcing local schools to allow students to use whatever bathrooms and other intimate facilities they wish that are consistent with their gender self-concept on a given day. Obama’s gender-fluid policy directed schools to abide by the policy without allowing local educators to decide what is best for their school and community.

The State of Texas is defending a local school district whose school policies are in conflict with the Obama Administration directive, the Harrold Independent School District. Harrold, Texas, is located in Wilbarger County and borders Oklahoma.

The judge wrote in his Order, the “nationwide injunction is appropriate in this case because Plaintiffs have presented a strong facial challenge to the Guidelines, arguing they violate the Administrative Procedures Act (“APA”) by skirting the notice and comment process and contradicting existing law.”

The Obama Administration’s use of executive action and administrative regulations to bypass Congress has been an issue throughout its two terms.

As reported by Breitbart Texas, Obama used federal government action to dictate that the DAPA program (Deferred Action for Parents of Americans and Lawful Permanent Residents) be implemented. As noted in a Breitbart News article, the ruling was sobering for conservatives because the Court declined to rule on the notice-and-comment provisions of the Administrative Procedure Act (APA).

The APA requires a time period for notice to and comment from the public before issuing rules that create public policy mirroring law. A ruling that the federal government violated the provisions would have provided for transparency and government accountability.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.

Texas v. United States Denial of Partial Stay of Preliminary Injunction Order by lanashadwick on Scribd


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