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The administration likely has another strategy in the works to assure that employers don't discriminate against trans workers, legal experts say.
President Joe Biden's administration is not appealing a ruling by an anti-LGBTQ+ federal judge that certain types of workplace discrimination against transgender people are legal in Texas.
That doesn't mean the administration accepts the ruling, and legal experts say it likely has another strategy in the works, The Dallas Morning News reports. But for now, federal government officials aren't responding to queries, and Texas Attorney General Ken Paxton, who brought the lawsuit that resulted in the ruling, is touting the lack of an appeal as a victory.
In October, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ruled that the Biden administration's guidance on implementation of the Supreme Court's Bostock v. Clayton County decision is overly broad. The Bostock ruling, issued in 2020, decreed that anti-LGBTQ+ discrimination is sex discrimination and therefore illegal under the Civil Rights Act of 1964.
Kacsmaryk objected to the guidance, saying the Bostock ruling applies only to hiring and firing practices and doesn't mean, as the guidance had it, that companies have to allow workers to use the restrooms corresponding to their gender identity or dress according to that identity, nor do they have to use employee's preferred pronouns.
Paxton, a longtime opponent of LGBTQ+ equality, originally filed the suit against the Equal Employment Opportunity Commission, then amended it to include the U.S. Department of Health and Human Services to challenge its guidance saying federally funded agencies can't keep people from accessing medically necessary care, including gender-affirming care. Kacsmaryk also ruled Texas doesn't have to comply with this guidance either.
The guidance had come in response to Texas Gov. Greg Abbott's order that parents be investigated for child abuse if they allow their trans children to access this care. The order was based on a legal opinion from Paxton. Most of the investigations are blocked by court action while a lawsuit against the order proceeds.
"While federal guidance is not meant to be legally binding, the ruling noted that the Biden administration said Texas could face penalties for not protecting gender-affirming care," the Morning News reports.
The administration had 60 days to appeal the ruling; the appeal is a responsibility of the Department of Justice. But it missed the deadline.
Paxton issued a celebratory press release. "Biden's failure to appeal by the deadline means this victory is now secure -- Texas employers and employees will not be forced to have workplaces infused with woke gender theories, and Texas children will be safe from the Biden Administration's so-called sexual orientation and gender identity agenda," he said.
Legal experts said the lack of an appeal won't have an immediate impact, and they predicted the Biden administration would use other means to work for these protections. It has proposed new guidance for school and medical settings, and it may do so for the workplace, the Morning News notes. But none of the federal departments or agencies involved offered comment.
South Texas College of Law professor Joshua Blackman told the paper that employees can still sue for discrimination. And Joshua Block, a senior attorney at the American Civil Liberties Union's LGBTQ & HIV Project, pointed out that "no other judge is bound by this judge's legal reasoning."
Kacsmaryk, who was previously an attorney with right-wing legal group First Liberty Institute, has issued other ultraconservative rulings. He recently held that a federal program providing grants for voluntary and confidential family planning services violated parental rights because the services are available to adolescents. He also blocked the Biden administration's effort to end the "remain in Mexico" policy, which was started under Trump and requires some non-Mexican asylum seekers to stay in Mexico while their cases are heard. Texas and Missouri have filed suits seeking to retain the policy.
