Feds: Texas Can't Sue Over Unenforced Trans Student Guidelines

The Obama administration asked a federal judge today to reject a request from 12 states seeking to ignore the federal government's guidance on equal access for transgender students.

The guidance, issued by the federal Departments of Education and Justice in May, is not legally binding, and so the states challenging the policy haven't actually been forced to comply, attorneys for the administration said today, according to tweets from Lambda Legal.

Lambda staff attorney Paul D. Castillo was at the U.S. District Court for the Northern District of Texas in Fort Worth today, sitting in Judge Reed O'Connor's courtroom as the Obama administration and attorneys representing 12 states, led by Texas, made their opening arguments in the case known as Texas v. U.S.

The lawsuit is one of two in which a combined two dozen Republican-led states have challenged the administration's interpretation of existing law to mean that public schools should allow transgender students access to restrooms, locker rooms, and sports teams that correspond with their gender identity. Prior to today's hearing, Texas Attorney General Ken Paxton claimed that the administration's guidance -- which follows a long-standing legal trend toward trans-inclusive interpretations of Title IX's prohibition on sex-based discrimination in schools -- somehow allows students to flip-flop between genders.

Today's hearing was on the states' motion for a preliminary injunction, which, if granted, would block the trans-inclusive guidelines issued by the federal government. Attorneys for both sides were given uninterrupted time to make their opening statements, and the first questions from the judge were procedural, according to Lambda. Judge O'Connor did not issue a ruling today, though he did ask about the start date for school districts included in the lawsuit, which Lambda interpreted to mean that a decision may come down "soon."

At the opening of today's hearing, Judge O'Connor acknowledged that the case could easily be confused with several similarly titled cases in which Texas is challenging policies implemented by the administration. Laughter could be heard in the courtroom, Lambda notes, serving as an acknowledgement that Texas Attorney General Paxton (and his predecessor, now-Gov. Greg Abbott) have filed an unprecedented number of lawsuits on behalf of the state against the current U.S. government.

The government's overarching argument in court today was that the lawsuit is unnecessary, since there has been no punishment for states that refuse to abide by the guidelines. Thus far, the federal government has declined to take any action to enforce the guidelines issued. Although the Department of Justice has indicated that schools denying trans students equal access could lose federal funding, the department has not instigated any proceedings to cut off those funds, even in North Carolina, where the DOJ is suing the state for its anti-LGBT law known as House Bill 2.

The attorney representing Texas and the 11 other states in the suit claimed that the administration's nonbinding guidance interferes with "states' authority" and right to set their own educational policies. The Texas school district named in the suit reportedly has 100 students -- none of whom are openly transgender, the state's attorney said.

The attorney then spent a good deal of time focusing on an existing regulation that allows schools to create gendered facilities, like separate bathrooms and locker rooms for boys and girls, but Lambda's Castillo noted that the regulation being discussed makes no mention of transgender students.

Indeed, trans students are not seeking access to separate facilities, nor any "special rights." As advocates and a growing number of federal courts have repeatedly pointed out, transgender people only want to be granted safe access to restrooms and other facilities that correspond with their gender identity, the same way that cisgender (nontrans) people are allowed to access facilities that correspond with their gender identity.

Immediately after today's hearing, Lambda Legal and four other LGBT advocacy groups -- which also filed a joint "friend of the court" brief in support of the administration's position -- issued a statement urging the court to keep in place the trans-inclusive guidelines.

"We are urging this court to protect transgender students and workers and allow them to enjoy a safe and discrimination-free education and workplace," said the statement from Lambda, the American Civil Liberties Union, the Transgender Law Center, the National Center for Lesbian Rights, and GLBTQ Legal Advocates and Defenders. "We filed an amicus brief in this case because we oppose the efforts of state officials to manipulate the federal court system in order to skirt well-established law in their home circuits that affirms and respects the rights of transgender students and employees. We urge the court to deny the states' request for a preliminary injunction."