WASHINGTON — More than a dozen states on Wednesday asked a federal judge to issue a nationwide injunction halting enforcement of the Obama administration policies aimed at protecting transgender people from discrimination in schools and in the workplace.
The move came one day after the Justice Department asked a federal judge to halt the enforcement of the anti-transgender "bathroom bill" portion of North Carolina's anti-LGBT HB 2 law.
The dueling lawsuits — in federal courts in Texas and North Carolina — are just two of several lawsuits pending across the country addressing what "sex discrimination" means — specifically, whether discrimination based on gender identity is a type of sex discrimination barred under existing laws.
This debate is not a new one. Federal courts have been addressing this issue for some time. The Equal Employment Opportunity Commission decided the issue for its purposes — finding that transgender people are protected — in 2012. The Justice Department announced that the Obama administration backed that view in 2014.
The Supreme Court, however, has the final say on the question of whether existing civil rights laws — primarily Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 — protect transgender people from discrimination, and it has not weighed in on the issue directly. Some lower courts have not weighed in on the matter either, leaving some trial courts open to interpreting the laws themselves and reaching their own conclusions based on their reading of the laws.
After the Obama administration sent guidance to school districts in May explaining the administration's interpretation of the law, conservatives balked and, soon thereafter, Texas — joined by a handful of other states — sued. The move is the latest of several lawsuits filed by the Texas Attorney General's Office in opposition to executive actions by the Obama administration.
"Across the nation, non-federal officials are authorized to formulate and enforce policies to ensure safe and productive educational and workplace environments. This includes the regulation of physical buildings and facilities, including public school restrooms, locker rooms, and shower rooms," the lawyers running the case for the states write. "Unless enjoined, the new mandates will deny the public interest in the continued operation of otherwise valid policies protecting the safety of students in public educational institutions, and workers in myriad places of employment."
The states press three main arguments: (1) "Defendants skirted the notice and comment process—a necessity for legislative rules"; (2) [T]he new mandates are incompatible with Title VII and Title IX; and (3) [T]he mandates violate the clear notice and anti-coercion requirements controlling the federal government’s power to attach strings to spending programs."
The brief is signed by Austin Nimocks on behalf of himself and several Texas Attorney General's Office lawyers led by Texas Attorney General Ken Paxton, as well as nine other state attorneys general.
The request will be considered by U.S. District Court Judge Reed O'Connor, nominated to the bench in 2007 by President George W. Bush.
On Thursday, Judge O'Connor order the Obama administration's response to be submitted by July 27. The states' reply, if they wish to give one, is due by Aug. 3. O'Connor also stated that he would schedule a hearing on the arguments at a later date.