Judge Knocks Down Obama’s Transgender Bathroom Order

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Kevin Daley Supreme Court correspondent
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A federal judge in Texas blocked the implementation of the Obama administration’s order allowing transgender students to use the bathroom of their choice Monday.

The order comes on the first day of school for hundreds of districts in Texas and around the country.

The administration sent guidance to school districts across the country in May, advising them to allow trans students to use the bathroom consistent with their gender identity. “A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX,” the letter said, in reference to the federal law banning gender discrimination in education.

Texas and a dozen other states brought a lawsuit against several federal agencies, seeking an injunction to block the rule earlier this month. (RELATED: Texas Leads 13 States In Lawsuit To Stop Obama Transgender Bathroom Rules)

“We are pleased that the court ruled against the Obama Administration’s latest illegal federal overreach,” Texas Attorney General Ken Paxton said in a statement. “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. That cannot be allowed to continue.”

The agencies argued that the guidelines they issued only reflect their interpretation of Title IX, and are not orders bearing the full force of law. They further contend the guidelines were issued because of ambiguities in Title IX, since the law does not address how a school should accommodate a transgender student. As a consequence, they argued the court must defer to their interpretation of the law, since a court may not overturn an agency’s interpretation so long as it is “reasonable.”

U.S. District Court Judge Reed O’Connor, a George W. Bush appointee, rejected the argument and issued the injunction, ruling that Title IX was not ambiguous, and therefore no deference was required. He also found that the states had a reasonable chance of success in future arguments and that they would suffer irreparable harm without the court order, the other elements necessary for an injunction.

O’Connor also reacted favorably to an argument from the states which could significantly affect the way federal agencies operate.

The states accused the agencies of issuing the guidelines by means of regulatory “dark matter,” a deluge of agency directives, notices, memoranda, guidance documents, and even blog posts which effectively create new policy without congressional legislation or Administrative Procedure Act (APA) protocols. The states claim that this strategy allows agencies to evade judicial review and achieve their policy objectives — because the guidance stems from so-called “dark matter,” it technically lacks the force of law and therefore cannot be reviewed by the courts. Nonetheless, districts who do not abide by the guidance are targeted for punishment by the agencies, ensuring district compliance with the new agency “rules.”

“This regulatory shell game, where the federal government’s actions are purposefully designed to dodge accountability and transparency, must be stopped,” the states argued in their brief.

O’Connor reasoned that agency actions must not be judged by their label but by their effect. Because districts who do not comply with the guidelines face sanctions, possibly in the form of reduced federal funding, the judge ruled they have an “actual legal effect.”

“The Guidelines are, in practice, legislative rules—not just interpretations or policy statements because they set clear legal standards,” he wrote.

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