A motion filed in federal court by the Justice Department on Friday suggests that newly-minted Attorney General Jeff Sessions is reassessing a vague Obama administration order allowing transgender students in America’s public schools to use the bathrooms and locker rooms of their choice.
The Justice Department’s new motion in the 5th U.S. Circuit Court of Appeals seeks permission to delay a hearing on a previous motion — filed last year — which had asked the court to ease a preliminary injunction by federal district judge Reed O’Connor striking down Obama administration guidance about bathroom and shower use in taxpayer-funded schools.
The Obama administration guidance, sent in May, instructed public school districts across the country to allow transgender students to choose bathrooms and shower stalls consistent with their gender identity, not their biological features. “A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX,” the guidance said, in reference to the 1972 federal law banning gender discrimination in education.
The U.S. Department of Justice motion to delay came just one day after Sessions was sworn as President Donald Trump’s attorney general. The parties are “currently considering how best to proceed in this appeal,” the motion states, according to ABC News.
The preliminary injunction, entered in August, stems from a 2016 lawsuit filed by the state of Texas in response to the Obama administration’s transgender bathrooms directive. A dozen states have joined the suit, setting the stage for what once appeared to loom as a legal battle that could have huge implications for transgender legal issues.
The suing states accused the agencies of issuing the guidelines by means of regulatory “dark matter,” a deluge of agency directives, notices, memoranda, guidance documents, and even blog posts which effectively create new policy without congressional legislation or Administrative Procedure Act (APA) protocols. The states claim that this strategy allows agencies to evade judicial review and achieve their policy objectives. (RELATED: Texas Leads 13 States In Lawsuit To Stop Obama Transgender Bathroom Rules)
Judge O’Connor, an appointee of George W. Bush, wrote in the preliminary injunction that Title IX “is not ambiguous” concerning “the biological and anatomical differences between male and female students as determined at their birth.”
A Justice Department spokesman refused to comment on the motion to delay the hearing. Transgender enthusiasts lamented the Justice Department motion.
“Our concern is that it’s a very clear signal that at a minimum the Department of Justice — and possibly more broadly throughout the Trump administration — will not protect transgender students,” Human Rights Campaign legal director Sarah Warbelow told ABC News.
Next month, the U.S. Supreme Court is scheduled to hear a case involving a female Virginia high school student, Gavin Grimm, who insists on using boys’ bathrooms and locker rooms despite the fact that she is a girl. Grimm’s saga dates back to 2014 when the school board in Gloucester County, Virginia refused to allow her to use boys’ bathrooms and locker rooms. The school board chairman at the time, George Burak, observed that other students use bathrooms and locker rooms in addition to Grimm. To placate Grimm, now 17, the school district paid to build a number of unisex, single-person bathrooms for all students — including Grimm — to use. Grimm was unsatisfied. With the help of the American Civil Liberties Union, she and her parents sued the school district under Title IX, a comprehensive 1972 federal law that prohibits discrimination on the basis of biological sex. (RELATED: ACLU Sues To Allow Girl To Use Boys Bathroom, Locker Rooms At Public High School)
At least one physician has diagnosed Grimm with gender dysphoria, which means that Grimm insists she is actually a boy even though she was born with and lived her life with female reproductive organs. A lower court order — currently stayed — had directed the Gloucester County school district to allow Grimm to use boys’ bathrooms.
John Banzhaf, a famed public interest law professor at the George Washington University Law School, noted in a statement sent to The Daily Caller that the rights and safety concerns of transgender students must be balanced against the rights and safety concerns of everyone else who must use the same set of public bathrooms in a given taxpayer-funded building.
“The concerns about assault are raised not primarily about transgender males, but rather about traditional males who would have a legal defense if found within a female restroom,” Banzhaf said.