With two weeks left, the Obama administration has asked a federal appeals court to throw out a lower court's decision that suspended policies designed to protect transgender people's access to restrooms — a sign the current leadership of the Justice Department will close shop mid-fight on one of its signature LGBT issues.
Federal lawyers said in a brief filed Friday with the US Court of Appeals for the Fifth Circuit that the previous ruling was incorrect and overly broad.
The appeal comes just as Alabama Sen. Jeff Sessions, who has taken a host of anti-LGBT votes in his career, is set for confirmation hearings to become the US Attorney General, a top cabinet post where he could reverse the government's position on this and countless other matters.
The case at issue, brought by Texas and several other states last year, centers around guidance documents that say transgender students and workers should be granted access to restrooms and other single-sex facilities that match their gender identity. The federal agencies behind the guidance argue the rights are protected by existing civil rights laws that ban discrimination on the basis of sex.
US District Court Judge Reed O'Connor, however, sided with the states by ruling that the guidance likely exceeded the executive branch's authority because there was no rule-making process. He issued a temporary injunction in August that applied nationwide, suspending enforcement of the guidance documents. His order also blocked agencies from starting new enforcement actions and barred government lawyers from raising certain arguments in ongoing lawsuits.
With their remedies waning in the lower court — and time running out — the Justice Department's Civil Division made three arguments to the Fifth Circuit.
The Justice Department said the case is not ripe for judicial review because the government did not violate the Administrative Procedure Act, as Texas and the other states claimed. The guidance for schools and workplaces are not final acts by any agency, the appeal says, and therefore did not require a rule-making process under the APA.
Federal lawyers further contend the states lack standing to bring the case because they "can ignore [the guidance] without legal consequence." They note that enforcement stems from civil rights laws, not the guidance itself. In the past, the states have bristled at that argument, noting in briefs and oral arguments that the government cited the guidance when threatening to sue school districts that banned transgender students from certain facilities.
Finally, the Justice Department argues that the lower court, under Judge O'Connor, erred by ruling too broadly. O'Connor did so by in applying the injunction nationwide, rather than just within the states that brought the lawsuit, the government lawyers say.
O'Connor has not resolved whether the injunction applies only to school guidance that interprets Title IX of the Education Amendments of 1972 — or if it also implicated workplaces under Title VII of the Civil Rights Act of 1964. The government has contended workplaces should not be affected because the original injunction did not name Title VII — a matter where the Justice Department has requested clarity.
The Justice Department has asked the Fifth Circuit to throw out the injunction and instruct the lower court to dismiss the case.