Judge Blocks Federal Action on Transgender Students’ Bathroom Access, Appeal Expected

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On Sunday, a federal judge prevented the Obama administration from imposing a mandate requiring all public schools to offer students the choice of which bathroom to use based on their gender identity.

The order comes as schools begin the new academic year, indicating that they will likely not face federal sanctions if they do nothing to accommodate transgender students’ restroom and locker room choices.

Thirteen states — led by Texas — sued the federal government in response to a letter sent in May to public schools nationwide by the U.S. Departments of Education and Justice. It stated that all schools receiving federal education funds must honor the bathroom choices of transgender students or risk losing funding.

Texas Judge Reed O’Connor said the government did not seek public comment before issuing the letter. However, the Obama administration said that no such comment was necessary because the letter simply informed schools of what had already been decided by courts and federal agencies.

O’Connor also said the letter was more than advisory due to the fact that schools “jeopardize their federal educational funding by choosing not to comply.” He suggested that the federal law preventing public schools from discriminating based on sex does not apply to transgender students because when the law was passed, the “plain meaning of the term ‘sex’ meant the biological and anatomical differences between male and female students as determined at their birth,” O’Connor wrote.

Many expect the federal government to appeal the ruling, particularly because O’Conner said his order applies nationwide. The Justice Department previously argued that such an order would improperly force one court’s view on many other courts dealing with the same issue “and on the many other states that have opted not to join this lawsuit, thereby preventing fuller development of the law on these important questions.”

Sarah Warbelow, legal director of the civil rights group Human Rights Campaign, said she believes the order “puts thousands of transgender students at even greater risk of marginalization, harassment, and discrimination as they return to school this fall.”

The U.S. Supreme Court earlier this month put on hold another court order in Virginia that required a high school to allow a transgender student to use the bathroom he identifies with during the coming academic year. The justices said the order should remain on hold until the Supreme Court decides whether to take up the transgender issue in its coming term.