U.S. Sen. Jeff Sessions – Photo: Gage Skidmore.
Just one day after the confirmation of Jeff Sessions as U.S. Attorney General, the Justice Department filed a motion withdrawing its previous request for a partial stay of a preliminary injunction that bars the federal government from enforcing Obama-era educational guidelines requiring transgender students to be treated according to their gender identity under Title IX.
In the spring of last year, the Obama-led Justice Department, along with the Department of Education, had issued guidance to schools regarding the treatment of transgender students. According to the Obama administration’s interpretation of Title IX of the Education Amendments Act of 1972, treating transgender children according to biological sex, rather than gender identity, could be considered a violation of Title IX’s prohibitions against sex discrimination. The guidance recommended that, as a result, schools should allow transgender students to use restrooms and other facilities that comport with their gender identity.
In response to that guidance, a group of 12 states sued the federal government, seeking to stop it from attempting to enforce the guidance by denying federal funds to noncompliant school districts. The plaintiff states were victorious last year after U.S. District Judge Reed O’Connor issued a nationwide preliminary injunction designed to halt the government from carrying out its interpretation of Title IX. The Obama-led Justice Department subsequently asked the 5th U.S. Circuit Court of Appeals for a partial stay, in order to limit the scope of the injunction to just the 12 plaintiff states.
But on Friday evening, the Justice Department filed a three-page motion officially withdrawing its request for a partial stay and asking for a cancellation of oral arguments concerning the stay, which had been scheduled for Feb. 14.
“The parties are currently considering how best to proceed in this appeal,” the DOJ wrote in its brief.
The 5th Circuit has since granted the motion, canceling the oral arguments and leaving the nationwide injunction against the Obama-era guidance in place. This means that school districts that do not have pro-transgender policies in place cannot be compelled to adopt them.
The Human Rights Campaign blasted the Justice Department for its actions.
“After being on the job for less than 48 hours, Attorney General Jeff Sessions has signaled his intent to undermine the equal dignity of transgender students,” HRC President Chad Griffin said in a statement. “Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws. It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests. President Trump must immediately reverse course and direct the DOJ to uphold guidance protecting transgender students.”
Even though the injunction prevents the government from asserting that Title IX’s prohibitions on sex discrimination apply to transgender students, LGBTQ advocates have continued to encourage transgender individuals who feel they have been discriminated against to sue under the statute.
For example, in the case of Gloucester County School Board v. G.G., which is slated to be heard by the U.S. Supreme Court later this spring, Gavin Grimm, a transgender boy at Gloucester High School, is alleging that a school district policy barring him from the boys’ restroom violated his rights under Title IX. A favorable decision by the Supreme Court, or one that upholds a previous 4th Circuit decision in favor of Grimm, could undermine the legal rationale for those states seeking to ignore or eliminate the trans student protections.