Trans

Texas Judge Blocks Obama Admin's School Transgender Accommodation Orders

Determines Title IX interpretation more than just 'guidance.'

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Bathrooms
Pedro Antonio Salaverría Calahorra / Dreamstime.com

Federal Judge Reed O'Connor of the Northern District of Texas has granted a nationwide injunction that prohibits the Department of Justice and Department of Education from attempting to legally enforce its recent "guidance" on how to treat transgender students.

The guidance told all school districts across the country that the Obama administration's interpretation of Title IX requires that schools must allow transgender students to use the facilities (restrooms, locker rooms, et cetera) of their expressed gender. Several states do not agree with this interpretation of the law and have objected, turning to the courts out of concern that their federal funding could be jeopardized if they don't comply with the orders.

Judge O'Connor agreed with Texas and essentially noted that the administration supplied much more than just "guidance," and despite the administration's claims otherwise, federal agencies were setting up new rules without going through the correct procedures.

To be clear, O'Connor is not ruling whether it is appropriate for the federal government under Title IX to require transgender students to be accommodated. Rather, his ruling is focused on whether the way the administration has been pushing this order forward has been appropriate under the law.

The administration attempted to deflect the lawsuit by attempting to claim that this all was "guidance" and that the states' federal funds were not currently threatened. This was perhaps an odd choice, given that the Department of Justice is actually suing the state of North Carolina right now to try to block the implementation of HB2, which prohibits transgender accommodation in public school facilities and government buildings. That lawsuit is referenced in the ruling, and O'Connor also notes that complying with the guidance brings new costs and actions that states must account for, giving them standing to oppose the non-legislative way this guidance is being pushed on them.

Whatever may be reported or tweeted about the ruling, this is not a judge saying that schools are right to discriminate against transgender students, and it doesn't even block school districts from accommodating transgender students on their own. It's about agencies within the Obama administration attempting to bypass the legislative and rule-making process and just putting policies in place that expand their own authority.

The ruling is different, but the reasons are not dissimilar, to last week's smackdown of the Equal Employment Opportunity Commission (EEOC) in a case where a funeral home fired a transgender worker who wanted to switch from wearing a male uniform to a female uniform in the workplace. A judge determined that the EEOC failed to consider alternative solutions (as required under the Religious Freedom Restoration Act) before taking the most punitive approach against the funeral home. As The New York Times recently noted, President Barack Obama's legacy as president will most certainly be focused on how he and the agencies that serve the administration have been using new rules and regulations within the executive branch to bypass the lawmaking process and push their political goals forward. This is far from the first time the judiciary has stepped in and stopped it, and it probably won't be the last.

Read Judge O'Connor's ruling here. Also note that the Supreme Court is still considering whether it's going to take up any cases over these disputes.

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  1. The department of “justice”.

    1. What does “Orwellian” mean again?

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  2. Whatever may be reported or tweeted about the ruling, this is not a judge saying that schools are right to discriminate against transgender students

    For some odd reason, I am reasonably certain this aspect will NOT be reported by the usual suspects. And, seriously, stop helping the dishonest information brokers by including “discriminate” at all.

    1. “Whatever may be reported or tweeted about the ruling, this is…a judge saying that schools are right to discriminate against transgender students…and greenlights long-held Republican plans for gay holocaust.”
      -MSNBC

      “Judge Declares Obama Dictator, Demands Resignation!”
      -Briebart

      1. “Clearly the right solution here is a middle-ground compromise between these two extremes”

        /Gary Johnson

      2. Columbia J-school grad. Or member of whatever replaced Journo-List. Though this could be redundant.

      3. In fact, only about a week ago, no less than the New York Times essentially admitted that Obama is a dictator in a long-winded piece that is apparently just part one of what will eventually be an excruciatingly long six part apologia.

        Given that the Times worships Obama and his far left policies, they of course approve of his dictatorship. Part one is even approvingly titled “The Regulator in Chief”.

    2. It’s weird how both “discriminate” and “indiscriminate” have negative connotations. You need the exact right amount of pickiness or gtfo I guess.

  3. Can you explain how the state stance is considered discrimination?

    The state(s) isn’t telling a male that he can’t use the men’s room because he thinks of himself as female. All males, regardless of their race, age, national origin, sexual orientation or gender identity, get to use the men’s room… and the same holds for the lady’s room, as all women have the right to use the women’s room.

    Basing society on how people think of themselves seems odd. Society doesn’t allow a 16 year old to drink liquor because he considers himself to be older than 21. We don’t allow 50 year old folks to collect social security retirement benefits because they consider themselves to be old farts. We don’t allow 35 year old men to have sex with 14 year old girls because the guy considers himself and acts like a teenager.

    So why is/should access to a bathroom determined by what someone considers themselves to be rather than what they are physically?

    1. This is the argument I’ve been raising. There is no “discrimination” here. Everybody is assigned a restroom based upon the same standard; namely, the biological equipment you carry. What transgendered persons are seeking is not equal treatment, but a special exception from the rule to which everybody else is subject. And they demand this exception without any consideration whatsoever of the legitimate rights, interest or feelings for anybody else.

      1. the biological equipment you carry

        Well, the equipment you are presumed to carry. I’m pretty sure they aren’t checking at the door.

        1. Depends on what kind of PE teacher you have.

        2. They’re not checking at the door. So how were we dealing with this issue– and I’ll be conservative on the timeline– between say, 1776 and last Friday?

          1. Well, it wasn’t an issue that required “dealing with” until we recently decided that “I dress like a girl” = “I am a girl” or something.

            1. Not even that. I’m sure plenty of trannies were using the restroom of their choice before and hardly anyone noticed or cared.

              1. The difference is that now a few boys are demanding the right to shower with high school girls in school (and wouldn’t accept the use of a private shower or the teachers restroom for other necessities).

              2. ^This. The Transgender bathroom problem is only a problem doe a) showers and b) flagrant expressions of self importance.

          2. We’ve been dealing with it all that time, as I’ve been suggesting that we should, by having everyone just do what seems appropriate.

            As a pointless aside, I wonder when sex segregated toilets became a thing? I’d bet it was a good while after 1776.

            1. Well, Rome separated public shitting rooms by nature assigned gender.

              1. OK, maybe I lose that bet.

            2. In more modern times, it apparently was the first successful outcome of women’s rights in London…

              There is surprisingly absolutely no information on this so can’t verify. It was just something I heard, so take it with a large dose of salt.

              I concur that ancient Rome (and very likely Greece, as well) separated bathing facilities by biological sex, even if the pool itself was open to all. There as also a difference in how these were handled for the classes (high class would have separate facilities, low class would be communal).

      2. Isn’t this the same argument re: gay marriage? “Everyone has the right to marry someone of the opposite sex, therefore gays are not being discriminated against.” Not that there’s anything wrong with this argument, but isn’t it the same thing?

        1. Exactly the same argument, Darren.

          The shift from “sex” to “sexual orientation” needed to eliminate licensing only traditional marriage as a violation of equal protection is the same shift from “sex” to “gender” needed to eliminate sex-specific bathrooms. Indeed, many definitions of “gender” encompass “sexual orientation”.

          But shifting from “sex” to something else in gay marriage cases has nothing to do with subsequent events.

          1. I don’t think it’s at all the same argument. Everyone is accommodated in the current bathroom setup, tho it might not be to their preference (ie, using sex vs gender based facility assignment). You can still pee, but it may not be where you prefer.

            Marriage, on the other hand, can’t be implemented by proxy with a similar result. The big sticking point is spousal benefits (along with health decisions). You can accomplish a lot with a power of attorney, but I don’t think it’ll get you spousal health care coverage.

            1. There needed to be a domestic partnership contract that we worked with health care/insurers to push for them to cover these arrangements.

              There also seemed to be an issue if a homo-couple where one had a biological child and died, the child’s custody would not be conferred onto the non-related partner, even if no other parent were involved and the child had considered him family from a very young age.

              This is where I am in firm agreement with Libertarians – there needs to be a better emphasis on personal, private contracts. Health care insurers could even require certain criteria be included in the contract in order for coverage be provided to the couple. This allows Health care insurers some protection if fraud is being used and provides coverage for genuine domestic partnership.

          2. Not at all, no one is kept from shitting or peeing. The comparison is better put if a hetero person wanted to have a gay wedding, rthey proclaimed discrimination, and everyone was like “wtf? You’re not gay, and can marry the opposite sex…”

      3. Everything after equal treatment before the law is special pleading. The current law, political, and economic systems run on it.

    2. “Discriminating against” doesn’t really fit. “Discrimination” might, but too many people have attached negative meaning to the word. Making people use sex segregated bathrooms is, in fact, discrimination, but few people see that as a bad thing. Lot’s of kinds of discrimination are necessary or desirable.

      1. Making people use sex segregated bathrooms is, in fact, discrimination,

        Depending on how you define discrimination, yes, it is.

        Of course, refusing to provide women with sex segregated bathrooms can also be regarded as discrimination. I expect we may see some open warfare between layers of the progressive stack on this one. Women used to be a lot closer to the top of the stack than they are now (having been demoted for trannies and Muslims), and they may not take that lying down.

        1. Women used to be a lot closer to the top of the stack than they are now (having been demoted for trannies and Muslims), and they may not take that lying down.

          I think you did something there, that I possibly observed.

          1. I’m shocked, Swissie, that you would think that.

            *replaces monocle, storms off in a huff*

    3. because if it’s couched as discrimination, it becomes easier to demonize opponents.

    4. It’s also important to keep in mind, IMO. If something happens to the Men’s or Women’s Rooms that prevents access or use, government buildings don’t just shut down. Biological males are allowed to use the women’s room and vice versa, frequently done by attaining the nominal assent of any/all interested parties.

      The fact that the FedGov feels compelled to act issue guidance assumes some massive compelling federal interest which can’t possibly exist.

    5. So why is/should access to a bathroom determined by what someone considers themselves to be rather than what they are physically?

      What happens when they get a genetic test showing an extra chromosome or are a hermaphrodite. Those are physically traits that could effect gender. Not saying we need some special laws to protect them but your assumption that there are only men and women and that all people fall into one of these two categories is false unless you can explain how hermaphrodites fit in.

      1. It is a sign of progress of humanity – that we no longer need to worry about food, water, shelter, etc – when we have time to debate (and take action!) on the needs of the 0.001%

    6. @steve sturm. I made a similar argument against people claiming traditional marriage discriminates against homosexuals. The law at the time clearly treated everyone the same and applied to everyone equally. Anyone could marry anyone else of the opposite sex as long as certain established criteria were met and that criteria applied to everyone. A homosexual could and often did marry a legally available person of the opposite sex, just as straight people could. There was never a law barring homosexuals from getting married.

      The real argument has never been about equal protection under the law. That is just a way to make the cause sound more noble. It was/is all about removing restrictions within the law. Since the restrictions in marriage laws exist mostly because of the do’s and don’ts of procreation, and same sex marriage by definition has nothing to do with procreation, I predict it will be increasingly difficult to defend the remaining restrictions that apply to consenting adults. Without the various aspects of procreation as a foundation to marriage, there is no need for any marriage restrictions on consenting adults and the restrictions become discriminatory for no defensible reason.

    7. Steve you nailed it.

    1. Holy shit. That thing looks like a portal to hell.

  4. This also does not bode well for the Department of Education’s “Dear Colleague” letters on sexual assault and microaggressions. The same objection can be raised against them

    1. Only if you want to be labeled a rapist.

  5. OK, so the court found the challengers of the regulation had a reasonable probability of success on the merits, based on the Administrative Procedure Act (APA).

    Specifically, the regulation was not issued with an opportunity for comment as the APA requires for such regulations.

    *Also,* the regulation is “contrary to law” because it gives a wrong definition of “sex.” Sex refers to the inborn anatomical differences between male and female, not whether someone *feels* like a man or a woman.

    This seems like a big defeat.

    1. The court did what courts do – rule on the narrowest possible grounds, in this case, failure to comply with APA procedure.

      With this in hand, they didn’t need to rule on the bigger issue: whether a statute that prohibits sex discrimination should be read to also prohibit gender discrimination.

      1. “the Court concludes that jurisdiction is proper here and that Defendants failed to comply with the Administrative Procedures Act by: (1) foregoing the Administrative Procedures Act’s notice and comment requirements; and (2) issuing directives which contradict the existing legislative and regulatory texts….

        “Given this regulation is not ambiguous, Defendants’ definition is not entitled to Auer deference, meaning it does not receive controlling weight….Instead, Defendants’ interpretation is entitled to respect, but only to the extent it has the power to persuade….A definition that confuses instead of clarifies is unpersuasive. Additionally, since this definition alters the definition the agency has used since its enactment, its persuasive effect is decreased. …Accordingly, the Court concludes Defendants’ interpretation is insufficient to overcome the regulation’s plain language and for the reasons stated above is contrary to law.”

        1. Maybe there’s some other regulation they can repeal and *then* they can re-interpret the statute? I kind of bogged down.

        2. Accordingly, the Court concludes Defendants’ interpretation is insufficient to overcome the regulation’s plain language

          They didn’t say that the “interpretation” exceeded the statutory grant of authority, only that it wasn’t consistent with prior statements by the agency itself.

          1. OK, I get it, so they just have to change the underlying regulation and try again?

            1. That would be a start. The court could still point at their long history of saying “sex means sex, not gender” to try and dodge having to actually limit agency authority to what Congress has granted to them.

              The courts know good and well that the federal regs are chock-a-block with ultra vires regulations. They desperately want to avoid grasping that nettle. Their doctrine of extreme deference to agencies postponed the day of reckoning for a generation or more, but there gets to be a point where you can’t stretch the statutory language to cover the agency power grab. This guidance looks like it may be that point.

              I will say that a court calling an agency on its game of titling new regulations something other than regulations (“guidance” is a favorite) to avoid the APA is a step in the right direction. Competent hospital attorneys rarely look at the Code of Federal Regulations for many CMS requirements. We look at the “Manuals” that CMS puts out for auditors and enforcers, because we know that’s where the real rules are.

              1. Sounds like if you give ’em an inch they take a mile.

                1. I would say, if you give them a job, they will take a mile.

              2. CMS requirements. We look at the “Manuals” that CMS puts out for auditors and enforcers, because we know that’s where the real rules are.

                If I understand you, this makes sense. There are laws which are so utterly vague and broad, that you have to look to how they’re being enforced– or the internal department guidelines on what’s good, what’s bad etc. to get any idea if you’re going down the right path.

              3. The FDA is a big fan of “Draft Guidance.”

  6. The only rational solution left is to build 700 bathroom options for any perceived or realized difference in any person on earth.

    After all, in a made up crisis, the Gov’t must allocate tax payer resources to their friends to stimulate job growth. Which by the way will certainly be brought up as an added bonus to this stupid issue when these Keynesian zombies talk further about what is the stupidest deception ever that has held ground far longer than anyone ever thought.

    1. Take away bathrooms altogether.

        1. Single bathrooms – at massive expense – will be the end result of all this.

          1. That or Pink Stars of David for Transgendered will be the end result.

      1. You ain’t cool, unless you pee your pants

        1. +1 Miles Davis

  7. The administration attempted to deflect the lawsuit by attempting to claim that this all was “guidance” and that the states’ federal funds were not currently threatened.

    And if past rulings are any guide to future rulings – a “precedent”, if you will – SCOTUS will defer to the relevant agency in their determination of whether or not this is merely “guidance” as to how a rule is to be interpreted or a new rule which requires the due process notice-and-comment procedure. I mean, they’ve pretty much already decided “who are we to second-guess a government agency as to what is and is not Constitutional”, haven’t they?

  8. Texas Judge Blocks Obama Admin’s School Transgender Accommodation Orders
    Determines Title IX interpretation more than just ‘guidance.’

    I expect that Tony will tell us that Law is whatever the legislative and judiciary say it is and accept this ruling for what it is.

    1. Of course he will. Tony is a model of consistency and integrity that we should all strive to replicate.

  9. Whatever may be reported or tweeted about the ruling, this is not a judge saying that schools are right to discriminate against transgender students,

    But schools did discriminate against these putative transgender students by building boys and girls restrooms and showers and did so because they’re prescient bigots.

  10. I will not share a restroom with a floating Hindu baby!

  11. I had no idea how dangerous Just One Of The Guys actually was.

      1. Hell it was a cruel joke in 50s, disgustingly celebrated in the 80s.

        1. *and* disgustingly celebrated. It was outright absurd in the 90s. I guess that’s when change started to happen.

  12. This is all just a conspiracy by Big Bathroom Sign.

    1. Winston’s mom’s smile has nothing to do with this, Paul.

    2. Couldn’t we just place a sign on the bathroom that was Penis / No Penis?

      1. Doesn’t cover all transgender categories.

        1. Who cares if a logical contradiction is involved?

  13. It’s about agencies within the Obama administration attempting to bypass the legislative and rule-making process and just putting policies in place that expand their own authority.

    *squints suspiciously*

    That sound an awful lot like something I might have heard before…

    1. If this happens a few more times, I might suspect that this sort of thing isn’t just a coincidence.

      1. True fact:

        The HIPAA statute only directed CMS to draft privacy rules for the electronic transmission of claims data.

        CMS wrote privacy rules for every single medical record in the country.

        1. And conversations in the hallway. Don’t forget the conversations.

  14. Is it too much to ask that Reason take a libertarian position on this issue? Shouldn’t education be left to local government and communities? Why doesn’t Reason ever make that case?

    I guess when it has to do with some new perverse frontier in the sexual revolution it should totally be federalized then.

    What a shit publication this has become

    1. Ummm. Where has Reason said that bathroom rules should be made by the federal government? Certainly not here, or in any other article I have read on the subject in Reason.

      Shouldn’t education be left to local government and communities?

      I’m pretty sure Reason often makes that case as well? Even though there isn’t anything particularly libertarian about local control of schools (the libertarian case would be to do away with government schools altogether).

      Have you ever actually read Reason, or do you just read the comments complaining about what a bunch of cosmo-fagotarians they are?

      1. I’m just noting that I’ve seen a barage of criticism by Reason of the NC law, which merely allows businesses to decide their own bathroom policy, without any criticism of the DC and Charlotte law mandating business bathroom protocol. And when it comes to schools, I always see it framed as ‘bigotry’, rather than discussing that these things should be decided at the local level (an elimination of public schools would be ideal, but not realistic at the moment).

        Perhaps I’ve missed the articles where they’ve made this nuanced point. Please provide the link and I’ll retract my criticism, but I doubt you’ll find any.

        1. Mostly looks like straight reporting on the NC law to me. I don’t really find much strongly for or against it.

          Can you find anything to support the notion that Reason thinks that bathroom rules should be determined by the Federal government, or that they don’t support the rights of businesses to set their own toilet policies?

          1. Read any of Scott Schackford’s writing on the topic, including an article where he uses the NC law as an example that ‘federalism does not equal freedom’

  15. Read any of Scott Schackford’s writing on the topic, including an article where he uses the NC law as an example that ‘federalism does not equal freedom’.

  16. “this is not a judge saying that schools are right to discriminate against transgender students,”

    Stop calling this discrimination it’s not (at least not in the bad sense that it’s being used here). This just means people need to use the right damn bathroom, IE the one based on the sex your were born with.

    WTF has happened to common sense lately.

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