August 22, 2016
Late yesterday, a Federal Judge in Texas issued a nationwide injunction preventing the Obama Administration from enforcing its “bathroom directive” issued earlier this year. The “Guidance Document” from the Departments of Education and Justice instructed recipients of Title VII and Title IX federal funding to accommodate transgender individuals by allowing them to use bathrooms and locker rooms that corresponded with their gender identity. The Departments warned that noncompliance with the guidance document would result in potential loss of federal funding for schools and employers.
Two lawsuits have been filed challenging the directive – Texas was joined by twelve other states in a lawsuit filed in late May and ten states led by Nebraska filed a lawsuit on July 8th. Arguments from the Texas-led coalition and the federal government were heard by Judge O’Connor of the U.S. District Court of the Northern District of Texas on August 12th. The States argued the guidance circumvented the notice and comment requirements of the Administrative Procedures Act (APA) and contradicted existing laws and regulatory guidance. The federal government argued the guidance merely updates the Departments’ interpretation of Title VII and Title IX to clarify anti-discrimination protections for transgender individuals and is not subject to the APA.
Judge O’Connor agreed with the States and issued a nationwide injunction preventing the Obama Administration from enforcing its new directive. In the order, the judge argued the guidance meets the APA’s standards of a final agency action as the consummation of the agency decision-making process and creates legal consequences for those that do not comply. “Although the Defendants have characterized the Guidelines as interpretive, post-guidance events and their actual legal effect prove that they are ‘compulsory in nature,’” wrote Judge O’Connor. The Judge cited previous regulations issued by the Department of education permitting educational institutions to provide separate bathroom and locker room facilities on the basis of sex to provide privacy from the opposite sex. This regulation was affirmed by the U.S. Supreme Court in United States v. Virginia.
The injunction represents another win for States against an administration that is set on circumventing the legislative process while implementing its radical agenda. Changes in law need to go through the elected representatives in Congress, not unelected and unaccountable bureaucrats. Republican Attorneys General will continue to push back against attempts to rewrite laws without the people’s input.
A copy of the injunction order can be found here: https://www.texasattorneygeneral.gov/files/epress/Texas_et_al_v._U.S._et_al_-_Nationwide_PI_(08-21-16).pdf