Federal Judge Leaves Protections For Transgender Workers In Limbo

Judge Reed O'Connor confirmed late Tuesday that the federal government is halted from enforcing rules for transgender students nationwide, but he punted on the extent to which the injunction suspends protections for transgender workers.

A judge has denied the federal government's request to narrow the geographic scope of a nationwide injunction that bars agencies from enforcing rules to protect transgender students' access to restrooms and locker rooms that match their gender identity.

However, the court's order left open the larger question about whether the government is banned from enforcing similar rules that several federal entities have concluded protect transgender workers.

US District Court Judge Reed O'Connor's decision concerns what was already the country's broadest injunction limiting the government's right to enforce transgender protections under existing civil rights laws — primarily, Title IX of the Education Amendments of 1972.

O'Connor's decision, filed late Tuesday but dated Wednesday, attempted to clarify a previous order he issued in September. Rather than settle that issue for workers, however, O'Connor wrote that parties must submit more briefs to the court on the issue of "whether the injunction implicates Title VII [of the Civil Rights Act of 1964] in any manner."

Nevertheless, he appeared to conflate the impact of laws applying to students and workers — Title IX and Title VII — in a manner that suggested a future decision could apply even more broadly.

"Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy," O'Connor wrote in the opinion. "A nationwide injunction is necessary because the alleged violation extends nationwide."

O'Connor also restricted arguments the government can make in courts — saying that it may not rely on guidance documents and it may only argue in limited settings that Title VII and Title IX ensure transgender people's access to restrooms.

"Defendants are simply prevented from using the Guidelines to argue that the definition of 'sex' as it relates to intimate facilities includes gender identity," O'Connor wrote, without stating if those guidelines also encompass decisions from the Equal Employment Opportunity Commission.

He added that the government "may offer textual analyses of Title IX and Title VII" in cases where the government is a defendant and in cases where US appellate courts request the government to file a friend-of-the-court brief.

The case began May, when Texas and 10 other states sued numerous federal agencies to block them from enforcing an assortment of guidelines that were used to ensure transgender people's access to restrooms in education and employment settings. They argued the Obama administration's rules overreached federal law.

The 11 states took particular umbrage with guidelines sent to schools this year in which the government asserted that Title IX's sex discrimination ban includes a ban on anti-transgender discrimination — even though the law does not explicitly include "gender identity" in its text. Federal agencies have advanced that interpretation of civil rights laws over several years, including an analogous interpretation of law that applies to sex discrimination in workplaces.

Judge O'Connor issued a preliminary injunction last month siding with Texas, suspending the government from enforcing the policies in schools.

But his order left questions, according to federal lawyers, about whether it also applied to rules for workplaces and how would effect ongoing litigation. The Department of Justice filed two briefs (here and here) addressing the injunction’s scope. They argued the order should be applied narrowly — solely to schools — and only in the states that filed the suit.

Texas had countered that the order applied nationwide and the government should be barred from arguing the civl rights laws encompassed transgender rights in several ongoing cases.

In the Wednesday order, O'Connor ruled that the the guidance cannot be relied upon in any cases where "no responsive pleadings were filed and no substantive rulings [were] issued before August 21, 2016."

Among the outstanding questions was whether the September ruling barred the Equal Employment Opportunity Commission (EEOC) from processing complaints of discrimination relating to transgender workers accessing restrooms.

In his latest order, Judge O'Connor wrote that the "EEOC’s statutory duties are not otherwise affected by the preliminary injunction" — allowing for the agency to process workers' discrimination complaints.

Even this clarification, however, did not answer all of the questions left in the wake of the initial injunction. The EEOC did not immediately respond to questions about how the order would affect how the agency processes complaints from transgender workers.

The Department of Justice declined to comment.

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