Battle Of The Sexes (Update)

At a minute before midnight, Northern District of Texas Judge Reed O’Connor issued a decision in U.S. v. Texas shutting down implementation of the combined Department of Justice and Department of Education “Guidance” letter directing school districts to accommodate gender identity under Title IX upon pain of losing federal funds. With the school year about to begin, Judge O’Connor issued a nationwide injunction against the government enforcing its rules.

The rationale behind Judge O’Connor was nothing shocking or outrageous, despite advocates’ efforts to spin it so. These were the same arguments raised here, that these are regulations issued in circumvention of the Administrative Procedure Act, without notice and comment, and that the executive agencies grossly overstepped their authority by redefining Title IX (as well as Title VII) to convert the prohibition on “sex discrimination” into a prohibition against discrimination on gender identity.*

Almost all of the reaction to Judge O’Connor’s ruling focused on the propriety of opening bathrooms to transgender students, reminiscent of how the commentary about the Gawker demise focused on how awful Gawker was. These are policy issues, questions of what law people would prefer, rather than what the law is. Regardless of how one feels about transgender discrimination, the question of whether it’s prohibited by Titles VII and IX is entirely different.

As has been argued here, and held by Judge O’Connor, the executive agencies have pulled an agenda out of their butts, shoehorned it into existing law by dissembling, and sold it to a progressive public that wants the outcome without regard to the fact that there is no law behind it. 

Lambda Legal put out a press release, joined by the American Civil Liberties Union and ACLU of Texas, National Center for Lesbian Rights, Transgender Law Center and GLBTQ Legal Advocates & Defenders, spinning the loss as best they could:

A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination. This unfortunate and premature ruling may, however, confuse school districts that are simply trying to support their students, including their transgender students.

So let us make it clear to those districts: your obligations under the law have not changed, and you are still not only allowed but required to treat transgender students fairly.

The scope of this injunction has no effect on the ability of other courts or lawyers representing transgender people to continue to rely on the federal government’s interpretations of Title IX or on prior decisions that have reached similar conclusions about the scope of federal sex discrimination laws.

The court’s misguided decision targets a small, vulnerable group of young people – transgender elementary and high school students – for potential continued harassment, stigma and abuse.

The claims are disingenuous, which is a nice way of saying utter bullshit. There are no “years of clear legal precedent nationwide,” a flagrant lie. There is a grand total of one decision,  G.G. v. Gloucester School Board, in which the Fourth Circuit gave the DoE Office of Civil Rights Auer deference, and which has since been stayed by the Supreme Court. By making it appear as if there is law supporting this paradigm shift in Title IX, Lambda Legal seeks to create the false appearance that this had always been the law. It’s never been the law. Indeed, Congress has specifically refused to make this the law. You may well disagree with Congress, but that doesn’t change the fact that this is not, and never has been, the law.

So is Judge O’Connor’s decision as pedestrian, as legally sound, as it appears? On the substantive law, it’s just no big deal. Advocates for gay and transgender rights have worked very hard, and been very effective, at redefining the words “sex discrimination” to mean sexual orientation and gender identity, ironically the opposite position advocates previously took when they sought to create separation between these concepts to elevate sexual orientation and gender identity into their own worthwhile causes, but that doesn’t change the law.

But Judge O’Connor’s remedies raise some questions. First, he issued a nationwide injunction against enforcement of the “Guidance”** issued that forces schools to comply with the bureaucrats’ agenda.

The Court concludes this injunction should apply nationwide. As the separate facilities provision in § 106.33 is permissive, states that authorize schools to define sex to include gender identity for purposes of providing separate restroom, locker room, showers, and other intimate facilities will not be impacted by it. Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognizes the permissive nature § 106.33. It therefore only applies to those states whose laws direct separation. However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of the state law. As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate.

Notably, Judge O’Connor doesn’t tell school districts they cannot provide gender neutral bathrooms (or any permutation thereof), but they aren’t required to. And to the extent his injunction might step on another judge’s toes, he invites the parties to raise other cases to narrow the scope of his injunction.  That said, it’s unclear from whence the authority derives to issue a nationwide injunction, given that the Fourth Circuit has afforded Auer deference to the DoE. He doesn’t address this question.

Finally, Judge O’Connor enjoins the government from arguing in other actions that its Guidance is lawful.

Additionally, Defendants are enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order.

There is neither discussion nor explanation for this aspect of the order, and it facially appears to be ultra vires, beyond the authority of the court, and a violation of separation of powers. He can’t tell the executive branch what they may or may not argue in this or any other litigation. But since he provides no explanation for this prong of his order, it’s impossible to know what he was thinking.

The injunction issued maintains the status quo ante, which is exactly what advocates for transgender students didn’t want to happen. Once bathrooms are opened regardless of biological anatomy, it’s a fait accompli. There’s no going back.

And once the bathroom issue is overcome, the array of as-yet undiscussed discriminatory issues surrounding transgenders will fall like dominoes. If Titles VII and IX prohibit transgender discrimination in one circumstance, they prohibit it in all circumstances. That’s the natural end-game of advocates, and perhaps that’s exactly as it should be and as people want it to be.

But it should get there by deliberate choice, not through the backdoor of lying about the state of the law, ramming it down the throats of recalcitrant school districts, and without an open and honest discussion of the rights and issues raised. For advocates, the ends justify the means. They always do and always have, and leave the detritus of unintended consequences to clean up later.

Update:  The New York Times uses its editorial soapbox to personally attack Judge O’Connor for his ruling that’s contrary to their political agenda, rationalizing their position with vague hyperbole:

The ruling, which the Justice Department is expected to appeal, may lead educators around the country to question whether they need to follow the Education Department’s transgender guidelines as the new school year starts. They would be wrong not to; the rules provide a common-sense approach that makes harassment and stigmatization of transgender students less likely.

Whether it’s “common sense,” the Times’ go-to excuse when it lacks any substantive argument, to compel public school students to room with students of the opposite anatomical sex, is a matter of opinion, though some wouldn’t share the view.

These legal assaults on equal protection for transgender Americans are based on bigotry and the specious claim that they pose a threat to the safety of others.

Except it’s not an equal protection case, but a Title IX case, and Judge O’Connor’s ruling had nothing whatsoever to do with the “specious claim that they post a threat to the safety of others.” That the Times’ advocates for its own agenda is fine, but to deliberately mislead its readers by utterly false assertions like these is tantamount to lying. Argue your position, guys, but don’t lie about it.

*At Volokh Conspiracy, Jonathan Adler, again, argues that the phrase “sex discrimination” on a purely textual basis can be viewed as sufficiently ambiguous to give rise to agency interpretation. This isn’t true from either an originalist or legislative history perspective, as both conclusively prove it meant male/female, and nothing more. As argued before, ambiguity isn’t created by the current trend of untethering words from definitions, calling a tail a leg, and then proclaiming a dog now has five legs.

**While the “Dear Colleague” letters are characterized by the administrative agencies as “Guidance,” meaning that they aren’t requirements but mere suggestions, used to circumvent the APA, Judge O’Connor held, as is obvious, that they are obviously requirements and carry the explicit threat of “comply or lose federal funding.” It’s about as much of a mere suggestion as a cop screaming, “hands up or I’ll blow your head off.”

6 thoughts on “Battle Of The Sexes (Update)

  1. Patrick Maupin

    > and it facially appears to be ultra vires

    Plenty of time later to deal with the objection, vacate that and try for a legal and more detailed order that still gives the judge whatever effect he’s looking for.

  2. Norahc

    It would be interesting to see where he feels his authority to issue a nationwide injunction derives from.

    In the meantime we can watch the government argue that he doesn’t have the authority to issue such a geographically broad order yet a magistrate judge can issue nationwide search warrants in the Playpen cases. Maybe the DoJ will reconsider its proposed Rule 41 changes if it bites them in the ass.

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