A federal judge in Texas Sunday blocked the Obama administration from enforcing guideline released by the Department of Education instructing public schools not to discriminate against transgender students.
The judge, George W. Bush appointee Reed O'Connor, ruled in favor of the 13 states led by Texas suing the Obama administration over the guideline, in which the administration urged school districts across the country to permit transgender students to use the bathrooms and locker rooms matching their identity.
The judge said his order was not yet weighing the "difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school."
Rather, Judge O'Connor said, he was placing an injunction on the directive because the states were likely to prevail on their argument that the administration did not go through proper rules and comment process for regulations, and that the Department of Education's interpretation of civil rights law was not in line with how the text was understood when it was passed.
The Obama administration has argued that it has the authority to issue the directives protecting trans students because Title IX’s language barring discrimination on the basis of sex could be interpreted to include gender identity. The court Sunday said that the states would likely succeed in their arguments that the language was not ambiguous and thus does not lend itself to that interpretation.
The order placed a nationwide injunction on the policy, and said that the administration cannot force the states challenging the directive to implement the policy.
"Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex," the order said. "Additionally, Defendants are enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order."
I'm assuming that the Obama Administration will appeal and probably get a stay on the order until an appellate court can make a ruling, but at some point this is going to end up in front of the Supreme Court and unless Democrats win control of the Senate back, there's no reason to believe that there will be nine justices actually deciding the case in a Hillary Clinton administration.
The larger issue is at some point America has to decide that laws protecting the right to discriminate are no longer acceptable in our society, and that's not going to happen until a number of Roberts court decisions get updated and/or reversed outright by a new liberal majority, starting with Merrick Garland replacing Antonin Scalia.
Here's hoping that's soon.