Judge blocks Obama’s transgender guidelines for school bathrooms

A federal judge in Fort Worth has blocked — at least for now — the Obama administration’s order to allow transgender students to use bathrooms of their choice in public schools.

The order by U.S. District Judge Reed O’Connor was signed late Sunday, just hours before thousands of North Texas students headed back to school — and more than a week after he heard two hours of legal arguments about whether he should block guidelines on how schools and employers should treat transgender people under anti-discrimination laws.

“This case presents 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,” O’Connor wrote.

Texas Attor ney General Ken Paxton’s office had asked for a nationwide injunction to block the federal directive, saying it has “unleashed uncertainty” as a new school year nears. Paxton’s office issued a statement Monday morning, saying it is pleased with the ruling.

“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,” Paxton said in the 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.”

A Justice Department spokeswoman said “the department is disappointed in the court’s decision, and we are reviewing our options.”

Earlier this month at a hearing in Fort Worth, Justice Department lawyers argued that federal guidelines issued May 13 appropriately include transgender people under existing laws forbidding discrimination on the basis of race, color, religion, sex and national origin at school and on the job. The guidelines are described as merely an instrument that offers interpretive information on existing anti-discrimination law. The actual laws are known as Title VII of Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.

But Austin Nimocks, an attorney for Paxton’s office, argued that the guidelines are a case of the government “usurping” its authority and undermining the sovereignty of states and local school districts. The guidelines, Nimocks argued, carry the threat of enforcement and could result in the loss of thousands of federal school dollars.

“Their actions speak louder than words,” Nimocks told O’Connor, alluding to how the federal government sued and threatened to cut federal funding when North Carolina passed its restroom bill.

Texas and the tiny Harrold school district are challenging the federal guidelines in a federal lawsuit filed in Wichita Falls. Among plaintiffs that also include Alabama, Wisconsin, Tennessee, Arizona, Oklahoma, Utah, Georgia, West Virginia, Louisiana, Kentucky, Mississippi and Maine.

Harrold is a small school district in Wilbarger County, northwest of Fort Worth between Wichita Falls and Amarillo. After the federal transgender guidelines were issued in May, Harrold trustees approved a policy that states, “Every multiple occupancy bathroom or changing facility shall be designated for and used only by individuals based on their biological sex.”

David Thweatt, superintendent of Harrold schools, declined to comment on the order, saying he was told to refer all calls to Paxton’s office.

Reed’s order touched on the sensitivity of a “difficult policy” that balances students’ rights against personal privacy in public school, but that issue wasn’t settled by the temporary order.

Fort Worth’s transgender guidelines

Obama’s order came after the Fort Worth school district became the center of a political firestorm when it issued local transgender student guidelines.

Fort Worth’s guidelines, which do not include language that guarantees transgender students access to all bathrooms, were announced in April by Fort Worth Superintendent Kent Scribner and prompted Lt. Gov. Dan Patrick to call for Scribner’s resignation.

“Campus safety should be of paramount concern for anyone in his position,” Patrick said in May. “Every parent, especially those of young girls, should be outraged.”

Patrick also said the Obama administration is “using the Fort Worth school district as their experiment in Texas.” He called Scribner a “dictator” and said Fort Worth’s guidelines were essentially “a page right out of the president’s book.”

In June, Paxton issued an opinion stating that the Fort Worth guidelines could violate state laws if educators withhold information from parents.

The Education Code “provides that parents must have access to all written records of a school district concerning their child, as well as full information regarding the child’s school activities,” the opinion states. “Attempts to encourage a child to withhold information from his or her parents may be grounds for discipline.”

In July, after a series of community forums, the Fort Worth district revised the guidelines with new rules that deal with each student case by case.

Clint Bond, spokesmen for Fort Worth schools, said both versions of the district’s guidelines were not modeled after the Obama guidelines.

“We continue to review the court ruling, but we are not really sure it applies to us,” Bond said. “… We are not sure that the whole thing applies to us in its current form.”

Proponents of states’ rights and pro-family advocates are monitoring the district’s actions and following the federal case.

“As school starts today we are thankful all students have been protected.,” said Zeb Pent, spokesman for the group Stand for Fort Worth. “Federal judges, state executive officers and Texas legislators have appropriately rebuked President Obama’s and Superintendent Scribner’s transgender agendas. We are disappointed our local elected officials including the mayor and school board members failed to listen to their constituents and stand for the rule of law and common sense.”

‘It’s a misguided decision’

Obama’s order is being monitored by interest groups including legal advocates for lesbian, gay, bisexual and transgender students and their families. Five civil rights organizations submitted friend-of-the-court briefs, including Lambda Legal and the American Civil Liberties Union of Texas.

Mark Phariss, a board member of Equality Texas, said the judge’s decision does not change anti-discrimination laws that protect students and employees.

“It is a misguided decision, but the good news is that it doesn’t change the law,” Phariss said.

Nell Gaither, president of the Dallas-based Trans Pride Initiative, said she is disappointed with the order.

“This ruling does nothing but harm transgender children. It will foster bullying and discrimination from students,” Gaither wrote in an email. “Seventy-eight percent of trans students nationwide experience discrimination in K-12, and 35 percent experience physical assault; this has long-lasting impacts on trans persons’ lives, increasing self-harm, suicidal ideation, and detrimental behaviors later in life.”

Adam and Amber Briggle of Denton County, the parents of a transgender male third-grader, attended the hearing.

“We are here in opposition to the motion that Ken Paxton is filing,” Adam Briggle told reporters outside the courtroom on Aug.12. “We want to be here to be the face of families” who are affected.

Briggle said the state’s suit treats youngsters like M.G., 8, unfairly because it aims to diminish protections for transgender students.

“It would require him to use a bathroom he doesn’t identify with,” Briggle said.

This report includes material from the Star-Telegram archives.

Diane A. Smith: 817-390-7675, @dianeasmith1