Last May, the Obama administration carried out a direct assault on Western civilization. In a single directive, issued without the benefit of Congressional input or even an attempt to adhere to rule-making procedure under the Administrative Procedure Act, the Obama administration decreed that the mentally ill and sexual perverts who claim to be mentally ill had to be allowed to use the restrooms and school locker rooms of their preference without regards to the concerns of anyone else.
Transgender students have the right to access bathrooms and locker rooms and participate on athletic teams that correspond with their gender identity, the letter makes clear. A school can offer private changing areas when requested, but those changing areas must be made available to all students — transgender students can’t be forced to use them, the letter says. When students (or their parents) tell a school they’re transgender, the letter goes on to say, the school must treat the student consistent with his or her gender identity — even if school records indicate a different sex for them. And schools can’t require that transgender students have a medical diagnosis, undergo any medical treatment or produce a birth certificate before they’re treated in a way that aligns with their gender identity, according to the letter. And schools must respond promptly to sexual harassment claims when the matter involves a student’s gender identity or gender transition.
The administration did this by the simple expediency of saying that sex, when used in the law, actually meant “gender identity.” By the way, this letter and the infamous “Dear Colleagues” letter than stripped male students of the ability to contest allegations of sexual misconduct provide the best evidence that the Department of Education should be done away with.
Several states, led by Texas sued and a federal judge issued a nationwide injunction.
In his 38-page order, O’Connor ruled that the states had standing to bring their lawsuit because the administration’s “Guidelines are clearly designed to target [their] conduct.”
The court found that the Obama administration’s actions likely violate the Administrative Procedure Act for failing to follow proper notice and comment procedures under the law because, the court found, the policies are “legislative and substantive.” Additionally, the court found that, under the text of the law, the Obama administration’s interpretation is incorrect — a ruling that contradicts an earlier decision from the 4th Circuit Court of Appeals in a related case challenging a Virginia school district’s policies.
While the administration argued that the guidance is allowed because the use of the word “sex” in regulations implementing Title IX is ambiguous, O’Connor disagreed.
“[T]he Court concludes § 106.33 is not ambiguous,” he wrote. “It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.”
Of the administration’s guidance purporting to change that “plain meaning,” then, he added: “A definition that confuses instead of clarifies is unpersuasive” — citing the judge who dissented from the 4th Circuit’s decision for support.
In granting the states’ request, O’Connor issued a nationwide injunction of the guidance, writing that “while this injunction remains in place, [the Obama administration is] enjoined from initiating, continuing, or concluding any investigation based on [its] interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.”
The Obama administration went back into court on November 23 to try to convince the judge to limit his injunction to the states in the Fifth Circuit.
Now the case has moved in a different direction. I’ll quote here from the Washington Blade (motto: we’re gay but we’re not happy) so you can enjoy the whole grit-in-the-panties flavor:
On the day after Jeff Sessions was sworn in as U.S. attorney general, the U.S. Justice Department has withdrawn its request to halt partially an order against Obama administration guidance protecting transgender students from school discrimination and assuring them to the restroom consistent with their gender identity.
But the new three-page Trump administration brief, jointly Friday filed by Paxton and Justice Department officials withdraws the request for a partial stay pending appeal. Further, the brief calls for cancellation of oral argument scheduled Feb. 17 on that request, asserting “parties are currently considering how best to proceed in this appeal.”
Chad Griffin, president of the Human Rights Campaign, placed the blame of the brief seeking to undermine the transgender student protections squarely with Sessions.
“After being on the job for less than 48 hours, Attorney General Jeff Sessions has signaled his intent to undermine the equal dignity of transgender students,” Griffin said. “Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws. It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests. President Trump must immediately reverse course and direct the DOJ to uphold guidance protecting transgender students.” (Because nothing says quality journalism like reprinting an advocacy group’s press release.)
As a layman, this seems like the next step is the withdrawal of the letter, in toto. It would be great, however, if Justice entered into some sort of agreement that the definition of sex would not be changed in the future without legislation. This would make it harder on the next Democrat administration to revisit the issue.