A federal judge in Fort Worth listened to almost two hours of legal arguments Friday about whether he should block federal guidelines on how schools and employers should treat transgender people under anti-discrimination laws.
Texas Attorney General Ken Paxton’s office is asking for a nationwide injunction to block the federal directive, saying it has “unleashed uncertainty” as a new school year nears. Lawyers for his office asked U.S. District Judge Reed O’Connor to issue an injunction at least temporarily halting implementation of the directives.
“I’m working on it,” O’Connor said from the bench, promising to issue an order quickly.
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.
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For school districts, the question has mostly involved whether students will be allowed to use the restrooms that represent their gender identities.
Some districts worry that they could lose federal funding if they keep “separate intimate facilities for male and female students,” according to the plaintiffs’ application for a preliminary injunction.
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.
“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.
Attorneys for Texas argue that the federal government’s guidelines on transgender restrooms are “coercive.” They said the state faces the threat of losing education dollars.
The Justice Department attorneys argued that it’s too soon to ask for an injunction because school districts don’t immediately face the threat of losing federal dollars because such penalties apply only when entities face enforcement actions — for example, if a student files a complaint that results in an investigation.
“There is no harm in the interim,” attorney Benjamin Berwick said.
He said judicial and administrative systems are in place for school districts or employers under scrutiny by federal agencies that oversee labor and education laws. Additionally, entities that face an enforcement or investigation don’t lose past federal funding.
Attorneys for the federal government said that the guidelines are expressions of an agency’s view of what anti-discrimination laws require and that Texas hasn’t shown it has suffered “irreparable harm.”
Texas and the tiny Harrold school district are 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.
“The Obama administration’s directive unlawfully invades areas that are better left to local schools and parents to balance the needs of students, including their safety, privacy and dignity,” Paxton said in a statement issued after the hearing.
The case was filed in federal court in Wichita Falls when the Harrold district stepped into the national transgender controversy with a unanimous vote of trustees in favor of 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.”
Harrold Superintendent David Thweatt told the Star-Telegram in May that trustees approved the policy at Paxton’s urging. He told the newspaper that to his knowledge none of the estimated 100 students in the district identified as transgender.
Two days after Harrold trustees approved the policy, Paxton’s office and the school district sued, calling the government’s guidelines part of a “massive social experiment” that “runs roughshod over common-sense policies protecting child and basic privacy rights.”
Many Texas school districts start classes on Aug. 22.
The case is being monitored by interest groups including legal advocates for lesbian, gay, bisexual and transgender students and their families, proponents of states’ rights and pro-family advocates.
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 said outside the courtroom. “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.
Mark Phariss, a board member of the advocacy group Equality Texas, and Paul Castillo, staff attorney for Lambda Legal, said the judge’s decision will affect the lives of transgender students in Texas.
Phariss said the attorney general’s assertion that the state is being harmed doesn’t consider students.
“If this judge rules otherwise, children will suffer,” he said.
On the other hand, Zeb Pent, spokesman for the group Stand for Fort Worth, said the federal guidelines are an overreach of executive power that bypasses Congress.
“We are hopeful that the courts will uphold the rule of law,” Pent said, adding that there are parallels between the federal case and the transgender guidelines that Fort Worth School Superintendent Kent Scribner originally approved in April.
“It’s so similar,” Pent said. “We have a rogue executive in Washington. We had a rogue superintendent.”
The legal dispute is the latest chapter in Texas’ so-called restroom politics.
Earlier this summer, Paxton and Lt. Gov. Dan Patrick called attention to the Fort Worth school district’s original transgender guidelines. 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.
Staff writer Anna M. Tinsley contributed to this report, which includes material from Star-Telegram archives.