A federal judge has blocked the U.S. Department of Education (DOE) from requiring public schools to allow transgender students to choose bathrooms and locker rooms according to their sense of “gender identity.”
DOE’s Office for Civil Rights and the U.S. Department of Justice’s (DOJ) Civil Rights Division sent a “Dear Colleague” letter to public schools in May mandating, in part, “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”
The New York Times reports the directive “does not have the force of law, but it contains an implicit threat: Schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or loss of federal aid.”
Texas led 11 states in filing a lawsuit against DOE and DOJ in May to overturn the transgender directive. Two more states have since joined as plaintiffs in the suit.
Texas Attorney General Ken Paxton (R) filed a brief in August on behalf of the 13-state coalition asking Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas to apply a preliminary injunction on the administration’s new rules while their case is being considered.
“We are proud to lead a 13-state coalition against the Obama administration’s latest illegal federal overreach,” Paxton said in a statement. “This president is attempting to rewrite the laws that were enacted by the elected representatives of the people, and is using the threat of losing federal funding to get schools to fall into line. That cannot be allowed to continue.”
On August 22, O’Connor granted the injunction, ruling the federal government did not grant states enough notice or give them a chance to comment on the guidelines before they were issued.
O’Connor said in his decision the directive also puts states “in the position of either maintaining their current policies in the face of the federal government’s view that they are violating the law, or changing them to comply with the guidelines and cede their authority over this issue.”
A Justice Department spokesman said in a statement following the ruling the administration was considering its options for challenging the injunction.
‘An Important Victory’
Matt Sharp, legal counsel for the Alliance Defending Freedom, a nonprofit legal organization working on religious freedom cases, says the judge’s ruling is good news for those in favor of state and local control of schools.
“This ruling is an important victory for the long-term battle,” Sharp said. “The Obama administration attempted to unilaterally change what the law and common sense say by issuing its Dear Colleague letter in May. The Texas decision shows that courts are recognizing the radical overreach by the Obama administration into an area that belongs to states and local schools. It also increases the likelihood that the Supreme Court will take up this issue to provide a final decision on whether the administration’s actions in imposing this edict nationwide are unlawful.”
‘Dramatic Social Engineering’
Horace Cooper, an adjunct fellow with the National Center for Public Policy Research and co-chairman of the national advisory board of Project 21, the National Leadership Network of Black Conservatives, says it’s not the government’s place to determine children’s views about sexuality.
“Young people, students in particular, are individuals who should not have social experimentations imposed on them,” Cooper said. “This should be the kind of decision that parents make, as opposed to institutions being motivated by certain agendas or mindsets. This is really dramatic social engineering: this theory that there is no such thing as gender or that gender is fluid.”
‘A Gender Jim Crow’
Cooper says he thinks the Obama administration has other motives outside of enforcing compliance with the transgender rules.
“I don’t believe the administration is serious about promoting this goal that they claim,” Cooper said. “I believe the administration is more interested in creating division and trying to create the impression that in 21st century America, the sexual orientation and gender interpretation of adults is somehow under siege. And that we are facing some modern version of a gender Jim Crow.”
‘Mostly a Non-Issue’
Cooper says accommodating transgender people is “mostly a non-issue” and has already been addressed successfully throughout the country.
“There are students in colleges and in work situations who are and were being accommodated to on a case-by-case basis,” Cooper said. “There are facilities all across the land where they have unisex restrooms. This kind of accommodation is easy. It’s simple. It was already occurring.
“The administration definitely wants to create the impression that they are promoting the concerns and interests of the transgender community, but they also particularly want the backlash,” Cooper said. “That’s the point. They took this step not because this discussion isn’t happening in a positive way. They did this precisely because there isn’t open conflict.”
Teresa Mull ([email protected]) is an education research fellow for The Heartland Institute and managing editor of School Reform News.
Judge Reed O’Connor, Preliminary Injunction Order, U.S. District Court for the Northern District of Texas, August 21, 2016: https://heartland.org/publications-resources/publications/texas-judge-orders-preliminary-injunction-on-obama-administration-transgender-directive