In a procedural move in an ongoing case in Texas, the Department of Justice, which recently welcomed former Sen. Jeff Sessions as its new attorney general, took a step back from the department’s previous defense of Obama-era guidance protecting transgender students’ rights.
The brief court filing says that Justice Department is “currently considering how best to proceed” in the lawsuit over the guidelines issued under the previous administration. While the does not affect a separate Virginia-based transgender rights case heading to the Supreme Court, civil rights advocates are already reading into it as a sign that they will no longer have an ally in the federal government, particularly when it comes to the rights of transgender young people in schools who seek to use the bathrooms matching their gender identity.
“While the immediate impact of this initial legal maneuver is limited, it is a frightening sign that the Trump administration is ready to discard its obligation to protect all students,” said Mara Keisling, the executive director of the National Center for Transgender Equality, in a statement, according to the New York Times. “Transgender students are not going away, and it remains the legal and moral duty of schools to support all students.”
The Texas case is legal challenge brought by Texas Attorney General Ken Paxton (R) and a dozen other states against a May 2016 “Dear Colleague” letter sent to schools by the Departments of Justice and Education. The letter warned schools that they could be sued for not providing bathrooms for transgender students consistent with their gender identity. The federal judge in the case placed a nationwide injunction on the guidance in August. The Justice Department, under Obama, had filed an appeal requesting that the nationwide injunction should be narrowed to affect only the states in the case. With Friday’s filing, however, the Justice Department stepped away from that argument and told the court to clear the case’s hearing schedule from its calendar until it determined how it wanted to move forward in the case.
It’s unclear what the implications are for the other transgender rights lawsuits percolating across the country. The Virginia case, which was brought by a transgender high school student against his school district, hinges on interpretation of constitutional and federal law, approved of by the Obama administration, that sex discrimination includes discrimination based on one’s gender identity. An appeals court ruled in his favor and the Supreme Court will hear oral arguments in the case in late March.
According to the New York Times, the Virginia student’s supporters had hoped the Justice Department would file an amicus brief in the case, but are feeling less optimistic after Friday’s move in the Texas lawsuit.
The U.S. Equal Employment Opportunity Commission, an independent federal commission, has continued its defense of transgender rights, in a separate case concerning workplace discrimination at a funeral parlor, BuzzFeed reported.
“Title VII’s prohibition on discrimination ‘because of … sex’ encompasses discrimination based on transgender status and/or transitioning,” the EEOC’s lawyers said in a brief filed Friday. “This conclusion is based on the text of Title VII, as well as decisions of the Supreme Court and this Court that have long recognized that Title VII forbids gender from playing a role in employment decisions.”
