Transgender Students Not Protected by Anti-Discrimination Law, Judge Rules

When lawmakers passed a major anti-discrimination law more than 40 years ago that banned unfair treatment in public schools on the basis of sex, did Congress mean to protect students who identify with a gender that differs from their sex at birth?

The answer is no, according to U.S. District Judge Reed O’Connor, who granted a nationwide injunction on Sunday that hollows out guidance from Barack Obama’s administration to public schools to let transgender students use bathrooms and locker rooms consistent with their gender identity.

O’Connor’s decision, issued on the eve of the first day of school in Texas, slapped down the administration’s attempt to use a decades-old anti-discrimination law as the legal basis for extending protections to transgender students.

The lawsuit — brought by Texas Attorney General Ken Paxton, a Republican, and joined by a dozen other states and two school districts in July — argued that the administration’s novel reading of “sex” to mean “gender identity” is not what Congress intended in 1972 when it passed Title IX, which prohibits discrimination on the basis of sex by recipients of federal funds.

“It cannot be disputed that the plain meaning of the term sex” in that law “meant the biological and anatomical differences between male and female students as determined at their birth,” wrote O’Connor, of the U.S. District Court for the Northern District of Texas in Fort Worth.

The legal challenge was in response to guidance issued in May by the Justice and Education departments. In their view, Title IX’s anti-discrimination protections should kick in once school administrators learn students identify as a different gender and schools should be required to treat those students consistent with that gender or risk losing federal funding.

But O’Connor ruled the administration exceeded its authority and also failed follow the proper procedure before issuing the guidance, including allowing a period for the public to weigh in.

The Department of Justice expressed disappointment over the ruling and said it is reviewing its options.

Civil rights organizations that submitted a joint friend-of-the-court brief called the ruling a “misguided decision” that leaves transgender students vulnerable to harassment, stigma and abuse. The groups — Lambda Legal, the American Civil Liberties Union, the National Center for Lesbian Rights, the Transgender Law Center and GLBTQ Legal Advocates and Defenders — vowed to continue their fight.

“We will continue to file lawsuits representing transgender students and litigate them to the fullest extent of the law — regardless of what happens with this particular federal guidance,” the groups said in a joint statement.

Transgender students’ ability to use bathrooms consistent with their gender identity has become a flashpoint in the broader legal and cultural debate over LGBT issues, and Sunday's injunction is latest in a series of recent legal setbacks for transgender rights.