Texas federal judge rejects Obama administration on transgender bathroom bill
A federal judge in Texas has largely rejected the Obama administration’s request to narrow a nationwide injunction banning enforcement of an Education Department policy requiring public schools to allow transgender students to use bathrooms, locker rooms and field trip accommodations corresponding to their gender identity instead of their genetic sex.
In an order issued late Tuesday, U.S. District Court Judge Reed O’Connor made some changes to the ruling he issued in August at the request of 13 states opposed to the policy, but he left the Education Department unable to bring new cases enforcing transgender students’ access to access to what he termed “intimate facilities” across the nation.
“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate. Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide,” O’Connor wrote. “Should the Court only limit the injunction to the plaintiff states who are a party to this cause of action, the Court risks a ‘substantial likelihood that a geographically-limited injunction would be ineffective.'”
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The judge said his order wouldn’t have any real impact in states that don’t require gender separation by law or policy, but it would still appear to apply to school districts that apply such rules themselves.
O’Connor, an appointee of President George W. Bush, did agree to allow the federal government to continue to defend the transgender policy in other cases where it is being sued over the issue and to pursue the policy enforcement actions in “litigation not substantially developed” before he issued the order in August.
He also said his decision applies only to “intimate facilities” and not to other discrimination against transgender students.
“The Obama Administration cannot hold hostage the privacy rights and dignity interests of boys and girls across America,” said Alliance Defending Freedom Legal Counsel Matt Sharp.
“The federal court’s affirmation of its previous order halting the Obama Administration’s unlawful threats against schools across the nation preserves the authority of local schools to act in the best interest of their students and not out of fear of being stripped of their federal funding. The court made clear that the Obama Administration’ unlawful actions put children at risk and that it cannot unilaterally disregard and redefine federal law to accomplish its political agenda of forcing girls to share locker rooms and showers with boys. Schools have a duty to protect the privacy, safety, and dignity of all students, and this order ensures that they may continue to fulfill that duty.”
The May 2016 Dear Colleague Letter from the Obama administration that redefined “sex” under Title IX to include gender identity impacted every public school and university, a nationwide injunction was needed to prevent harm to children in other parts of the country.
Texas Attorney General Ken Paxton, who’s leading the suit, welcomed the judge’s latest order.
“The court’s reaffirmation of a nationwide injunction should send a clear message to the president that Texas won’t sit idly by as he continues to ignore the Constitution. The president cannot rewrite the laws enacted by the elected representatives of the people and then threaten to take away funding from schools to force them to fall in line,” Paxton said in a statement.
A federal judge has extended and expanded nationwide an order mandating that the administration stop requiring public schools to allow anatomical male students to use female restrooms based solely upon their claim to feel female.
The order, which blocks use of the guidelines which apply to transgender students of both (or all) genders – but which has been controversial largely only when applied to female restrooms – now is expanded nationwide rather than being confined to the Texas jurisdiction in which it was issued.
Interestingly, both sides in this controversy – which pits the interests of transsexuals to use the restrooms with which they are most comfortable against the interests of girls and women not to have anatomical males free to use their restrooms without even any proof of their transgender status – seem to have overlooked an obviously win, win, win solution.
There’s an experimental all-gender multi-user restroom now being tested at George Washington University which not only satisfies the interests of both sides, but – unlike another proposed remedy – does not require the often-difficult and usually-expensive construction of many new single-user restrooms.
It also satisfies the needs of transsexuals as well as transvestites – who dress in a manner inconsistent with their anatomical sex – to be able to have ready access to conveniently located restrooms without having to declare any particular gender preference or identity, while at the same time insuring that girls and women will not find anatomical males (transgender or otherwise) in their female restrooms.
What his law school has done is simply to re-designate what was formerly a typical men’s restroom – with 3 urinals, 1 toilet in a stall, and 2 wash basins – as an all-gender restroom. Since the percentage of students who are transsexual is very small, most of the time the room functions as any other male restroom would, with many men able to urinate in a brief period of time.
However any person – including not only transsexuals, but also transvestites, men who are simply bashful, have shy bladder syndrome (paruresis), etc. – can enter this restroom without exposing themselves or identifying with any particular gender, and relieve themselves in the privacy of the stall.
Because typical women could even use this stall toilet if time is short and the lines at the nearby women’s room are too long, both F2M and M2F transsexual students can relieve themselves in the room’s stall-enclosed toilet without revealing anything about their anatomical or identity gender, notes Banzhaf.
Since in most buildings male and female restrooms are usually close together, this system would open up almost half of all restrooms to transgender students, and seemingly comply with the directive that transgender students not be forced to use single-seat restrooms if other students need not do so.
While such a system would occasionally expose typical male users to an anatomical female, most men seem unconcerned about any potential privacy invasion and, unlike the reverse situation, have no real fears about suffering sexual assaults or rape from anatomical females notes.
So this approach – converting all or at least most male restrooms into all-gender restrooms – may very well provide a quick and easy way to comply with the new federal directive, and do so without adversely affecting transsexuals, nor typical girls and women concerned about privacy and sexual assaults.
PUBLIC INTEREST LAW PROFESSOR JOHN BANZHAF