Moving at breakneck speed, Obama administration officials this year have tried to force schools nationwide to promote transgenderism—riding roughshod over students and parents concerned about the cost to their principles, their privacy and perhaps even their safety.
Now, a federal court has forced those officials to hit the brakes.
On May 13, the federal departments of Education (DOE) and Justice (DOJ) issued a joint letter to more than 100,000 elementary and secondary schools receiving federal funding nationwide. It laid out a series of “guidelines” they expected those schools to follow on “gender identity”—claiming policies favoring transgenderism are mandated by the existing federal law known as Title IX, which was passed in the 1970s to fight sex discrimination in education.
Although the letter lacked the force of law, it nevertheless came with an ominous warning: “As a condition of receiving federal funds,” schools were expected to comply.
But many states didn’t take kindly to the threat. And on Aug. 21, Judge Reed O’Connor of the Federal District Court for the Northern District of Texas granted a request by 13 of them in a lawsuit led by Texas. He issued a nationwide temporary injunction blocking the Obama administration from enforcing its policy, holding that the DOE and DOJ had overstepped their bounds.
“Essentially, O’Connor said if the administration wants to redefine what ‘sex’ means under Title IX, it needs to go through proper procedures,” explains Matt Sharp, legal counsel for the Alliance Defending Freedom. “That means either Congress must rewrite Title IX or, at the least, DOE must issue formal regulations which requires a process called ‘notice and comment’—putting out proposed rules, taking time to get public feedback, considering opposition to the rules.
“The administration didn’t do any of that. It just wrote a letter and sought to enforce that against every school in the country. The court said, ‘You don’t have that authority.’ ”
As welcome as O’Connor’s injunction is, it isn’t the final word. It’s an early step in a process which is liable to make its way through the court system in the coming months and years—a process involving both appeals to his ruling and conflicting rulings by other judges in other jurisdictions.
All this will take a bit of explaining.
‘Two Plus Two Equals Five’
To understand what’s going on, it helps to delve more into what the DOE and DOJ are telling schools.
In their May 13 “guidance” letter, they define a student’s gender solely by however he or she “identifies,” period. “There is no medical diagnosis or treatment requirement that students must meet,” the letter states, and “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
What’s caused parents and students the most concern, though, is the letter’s decree that “the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.” In other words, all the other students must sacrifice their privacy to the interests of their transgender classmate. If a school has a small, individual-use restroom, a transgender student can’t be required to use it, the federal officials wrote. The boy who says he’s a girl gets to use the girls’ room. No matter how many girls don’t want to share it with him, they’re the ones who must adjust.
The letter made clear the same rules applied in a variety of areas, including locker rooms, showers, membership on sports teams and housing for overnight trips. The boy who says he’s a girl stays with the girls. If there’s a private room available, he can’t be required to use it.
It’s a backward approach, says Roger Severino, director of the DeVos Center for Religion and Civil Society at The Heritage Foundation, a leading conservative think tank in Washington, D.C.
“People dealing with gender dysphoria”—the belief that they’re not really their biological gender—“should be treated with respect,” Severino says. “But the solution is to provide private accommodations for them, not to intrude on the rights and privacy of other people. That’s the reasonable, common-sense approach. But the Obama administration can’t have that, I think for ideological reasons.”
That ideology is further fleshed out in a document the DOE included with the letter, approvingly listing “policies and emerging practices” on transgenderism culled from Left-leaning school districts, cities and states.
Among other things, the document throws parental rights under the bus, approvingly describing how students must be allowed to “transition” at school without their parents’ knowledge—using different names, keeping records with those names, and otherwise adopting the identity of the opposite sex. As the District of Columbia Public Schools puts it, “Students may choose to let their parents participate in the transition process, but parental participation is not required.”
It’s been part of a pattern in the Obama administration, Severino notes.
“They’re pushing to require everyone to address a person by the pronoun of their choice regardless of biology,” Severino says. “So you have cases where a student has known a friend for 10 years as a boy, and if that student continues to address the boy as ‘he,’ the student will be disciplined, perhaps even expelled. For students, it’s equivalent to making them say two plus two equals five.
“This is the logical conclusion to the Sexual Revolution (of the 1960s). Not only can you do what you want to do without anybody being able to say it’s wrong, but you can actually be whatever you want to be based on your subjective self-identification, regardless of biological realities.”
State(s) of the Nation
When the DOE/DOJ letter landed, it may have come as a shock to some people. Not Austin Nimocks.
“For years, we’ve seen the federal government invading the sovereign space of states and communities,” says Nimocks, an associate deputy attorney general in Texas. “Whether we’re talking about local schools’ rights, health care, immigration or any number of issues, the federal government is trying to regulate the details of our lives. This is just one more example.”
Texas has been leading legal challenges to that overreach for several years now, Nimocks says, often forming coalitions with other states eager to join the battle. They were ready to respond this time, too.
On May 25—less than two weeks after the letter hit schools—Texas Attorney General Ken Paxton’s office filed a federal lawsuit in O’Connor’s court.
“This is about authority and whether policies that impact kids’ health, privacy and safety are going to be made by parents and local school boards or should be made for every student by bureaucrats in Washington, D.C.,” Nimocks says. “That’s why we brought this case.”
Soon the number of states joining Texas in the lawsuit (State of Texas, et al, v. United States of America) reached a dozen: Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin.
But that wasn’t the end of states rising up in defiance. In early July, Nebraska filed its own lawsuit, joined by nine other states: Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. That case (State of Nebraska, et al. v. United States Department of Education, et al,) is pending in the federal District of Nebraska.
Nimocks understands why the resistance is so widespread. “The Founders of this country gave a very narrow swath of responsibility to the federal government and left everything else to the states,” he explains. “If freedom is to be a hallmark of this country, the states have to be left to govern, and the citizens ultimately have to be sovereign.”
O’Connor found the states’ injunction request to be more than persuasive, noting that it didn’t require him to weigh in on the merits of federal policy on transgenderism, but on a much more basic question—whether the DOE and DOJ had the authority to enact the policy on their own, simply by issuing a letter.
“The resolution of this difficult policy issue is not … the subject of this Order,” O’Connor wrote in his 38-page ruling. “Instead, the Constitution assigns these policy choices to the appropriate elected and appointed officials, who must follow the proper legal procedure.”
Which they didn’t—leading the judge to issue his ruling, and its scope: “This injunction should apply nationwide.” The temporary injunction will remain in effect until O’Connor rules on whether to make it permanent, unless his superiors in the Fifth Circuit step in with their own direction.
Privacy and Dignity
It’s important to understand the limitations of the ruling, however—and of what “nationwide” means.
There are other, ongoing federal cases where specific schools or parents’ groups are embroiled in lawsuits involving transgenderism. O’Connor’s ruling has no bearing on the outcome of those cases—and some judges have taken the opposite position.
The most important, for the moment, is G. G. v. Gloucester County (VA) School Board, in which the U.S. Court of Appeals for the Fourth Circuit held that Title IX does require a female student who claims to be male to use boys’ locker rooms. But on Aug. 3, the U.S. Supreme Court voted 5-3 to put the ruling on hold until it decides whether to take the case—with justices supporting the stay—including Bill Clinton appointee Stephen Breyer and frequent swing-vote Anthony Kennedy.
That decision had not yet been announced at press time.
Whether or not that case ends up before the Supreme Court, Sharp expects some case will—and the one stemming from Texas is a good bet.
“(O’Connor’s ruling) is going to be appealed to the Fifth U.S. Circuit Court of Appeals,” he explains. “It’s just inevitable that the government is going to fight this all the way to the Supreme Court if they have to.
“A lot will be determined by what the Supreme Court does with Gloucester, though. If it takes that case, that’s likely to put a freeze nationally on a lot of these cases: Other courts will wait to see the ruling. If it doesn’t take Gloucester, there’s a good chance the Texas case would be one of the next in line for the Supreme Court—and it may get fast-tracked there.”
Although the Supreme Court has issued rulings favorable to LGBT causes in recent years, Sharp thinks this one could be a different story, because it focuses on federal overreach—an issue that sometimes has created unlikely alliances between conservatives and liberals on the Court.
“Even with the current makeup of the Court, this ought to be an easy ruling,” he says. “If you just look at this and ask, ‘Should any administration, Republican or Democrat, have the authority to rewrite laws?’ the answer is ‘No.’ They’ve got to go through proper procedures.”
Whether “ought to be an easy ruling” translates to “will be” remains to be seen, of course. But Nimocks says Texas and the other states are determined to see it through.
“Americans demand privacy in intimate areas—restrooms, locker rooms, dressing rooms,” he says. “We’re going to continue fighting for the privacy and dignity of all people. Those things are closely linked: Without privacy, there can be no dignity.
“We won’t hesitate to take this case all the way up to the Supreme Court, not just on behalf of Texans, but of all Americans.”
When the Obama administration sent a letter telling schools they must promote transgenderism or lose federal funds, it sparked a backlash across the country. A few of the reactions:
If the Obama administration tries to enforce this absurd edict, I will work with other attorneys general to challenge it. –Alabama Attorney General Luther Strange
Obama can’t rewrite the Civil Rights Act. The president is not a king. –Texas Gov. Greg Abbott
Mississippi’s public schools should not participate in the president’s social experiment. –Mississippi Gov. Phil Bryant
Schools are the domain of state and local government, not our nation’s president. If we have to fight this order, we will not hesitate to do so. –Utah Gov. Gary Herbert
It is difficult to imagine a more absurd federal overreach into a local issue. –Kentucky Gov. Matt Bevin
That letter is going straight to the paper shredder. I have five daughters myself and 2,500 girls in my protection. Their moms and dads expect me to protect them. And that is what I am going to do. –Port Neches-Groves (Texas) Superintendent Rodney Cavness
Originally published in the December 2016 issue of Citizen magazine.