U.S. District Court Judge Reed O’Connor did not issue a ruling from the bench after an almost two-hour long hearing during which state attorneys — as part of a Texas-led, 13-state effort to block the guidelines nationwide — argued they unconstitutionally “hold a gun to the head” of states and school districts.
In the first hearing over the state’s lawsuit against the federal government, Austin Nimocks, associate deputy for special litigation in the Texas Attorney General’s office, told O’Connor that the federal government “usurped” the authority of states and schools by requiring that “sexes must be mixed” in “intimate areas” like bathrooms.
The lawsuit stems from guidelines issued in early May by the Obama administration, which state that discrimination against transgender individuals violates federal nondiscrimination statutes, including the Title IX prohibition on discrimination based on sex at educational institutions that receive federal funding.
Those protections, the administration said, extend to gender identity and give transgender students the right to use their preferred bathrooms in public school, requiring schools to treat a student’s gender identity as the student’s sex for purposes of Title IX compliance, the guidelines say. While the guidelines do not have the force of law, school districts could risk losing federal money if they do not comply.
But Texas jumped the gun in filing the lawsuit because the federal government has not moved forward with any enforcement action against a school, said Benjamin Berwick, an attorney with the U.S. Department of Justice. Because of that, Berwick argued, Texas and the dozen other states that joined the lawsuit have no legal standing.
“Even if the guidance documents didn’t exist, the [federal government] could still bring enforcement based on understanding of the law as it pertains to transgender individuals,” Berwick argued. The difference is that entities would not have the “benefits” of knowing how the feds are interpreting the nondiscrimination protections.
Additionally, the states behind the lawsuit have not provided any evidence of the irreparable harm they’d face if the guidelines were not blocked, he said.
During the hearing, Nimocks regularly described the guidelines as coercive because schools were required to change their policies or risk losing federal funds over unconstitutional rules that were “legislative in nature” but passed without congressional approval.
“They cannot simply say they are clarifying” existing law, Nimocks said, adding that the new rules were not consistent with the use of the sex category by Congress in the federal statutes, where it has been kept separate from gender identity.
While Congress has added gender identity “next to” sex in other areas of federal law, it has not amended Title IX, the state argued.
While Berwick’s arguments focused on why the states did not have the legal standing to sue, he countered that gender identity was protected under existing federal statute because “gender is a sex-based characteristic” and that the guidelines were meant to provide clarification on the federal government’s interpretation of discrimination protections in light of the “emerging issues.”
“The contours of the law do not change over time,” Nimocks countered.
The 13-state lawsuit is part of a national fight over which bathrooms transgender individuals are allowed to use. Nondiscrimination protections for gay and transgender residents are not new; many municipalities have had policies on the books for years.
After Houston’s nondiscrimination protections for LGBT residents were repealed by voters last November — largely over bathroom concerns — the fight flared up again in Texas earlier this year after Fort Worth ISD approved its own policy to accommodate transgender students. Texas filed the lawsuit against the Obama administration guidelines soon after.
At the end of the hearing, O’Connor said he would continue to work on questions he was “wrestling with” but acknowledged that most schools start classes soon.
“I’m working on it,” O’Connor said.
This article originally appeared in The Texas Tribune, a nonpartisan, nonprofit media organization that informs Texans – and engages with them – about public policy, politics, government and statewide issues.
Top image: Illustration by Todd Wiseman for the Texas Tribune.