Late Sunday, U.S. District Judge Reed O'Connor put a nationwide preliminary injunction on the feds' guidelines just as the new school year kicked off. O'Connor ruled not on the merits or substance of the guidelines themselves, but on whether the feds followed constitutional rules when writing them. O'Connor concluded that the feds didn't follow the Administrative Procedure Act before issuing the directive to every school district in the country, and that the transgender-friendly guidelines won't be valid unless the feds follow proper law-making rules first.
"This president is attempting to rewrite the laws enacted by the elected representatives of the people, and is threatening to take away federal funding from schools to force them to conform," Texas Attorney General Ken Paxton said in a statement. "That cannot be allowed to continue, which is why we took action to protect States and School Districts, who are charged under state law to establish a safe and disciplined environment conducive to student learning.”
Texas, joined by 12 other states, sued the Obama Administration in May after the federal departments of education and justice sent a letter to all school districts, informing schools that, if they did not allow transgender students to use bathrooms, locker rooms and play on sports teams that correspond with their gender identities, the school districts would be violating Title IX. In as many words, the feds threatened to strip districts of federal education funding if they failed to comply.
Republican leaders in Texas leaders pretty much vowed never to allow such a policy to exist in the state —even if it meant losing $3.1 billion in federal education funding, as Lieutenant Governor Dan Patrick made clear in May. Paxton asserted that Title IX did not extend to transgender students based on gender identity, but only based on biological sex. And together, Republican Texas leaders turned the feds' attempt to provide a fair, comfortable and discrimination-free environment for transgender students at school into a fight over protecting non-transgender students' privacy and safety.
It was a perspective that the feds expressly shot down in their letter to school districts, saying: "As is consistently recognized in civil rights cases, the desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students."
Unfortunately, though, until the feds want to take the guidelines through the proper rule-making process, allowing time for public notice and comment first, then it looks like others' discomfort will come first.