In a clear shift away from his predecessor, President Donald Trump’s White House has asked a judge to cancel a crucial hearing in a legal appeal over an Obama-era rule regarding transgender bathroom use.
Former President Barack Obama issued a controversial administrative rule in May 2016 extending Title IX protections to transgendered individuals, ensuring their right to use the bathroom they claim aligns with their gender identity.
Had state-funded schools, colleges and universities not complied with the directive, it could put public institutions at risk of losing federal funding.
In August, Texas and 12 other states sued the Obama administration over the transgender directive. Critics of the guidance argue Obama’s Justice and Education Departments attempted to rewrite the definition of “sex” in “sex-based discrimination” to include gender identity and Republicans have asserted that the decision imposed federal mandates by unlawfully sidestepping Congress.
“We are proud to lead a 13-state coalition against the Obama administration’s latest illegal federal overreach,” Texas Attorney General Ken Paxton said in a statement at the time. “This president is attempting to rewrite the laws that were enacted by the elected representatives of the people, and is using the threat of losing federal funding to get schools to fall into line. That cannot be allowed to continue.”
As a result, U.S. District Judge Reed O’Connor temporarily blocked the Obama directive nationwide in August. In his ruling, O’Connor said Title IX “is not ambiguous” about sex being defined as “the biological and anatomical differences between male and female students as determined at their birth.”
The White House appealed O’Connor’s injunction in October and, in a separate request, asked that the judge at least modify the ruling to only apply to the 13 states that initially appealed the transgender directive. O’Connor, however, did not honor the request, saying, “A nationwide injunction is necessary because the alleged violation extends nationwide.”
A hearing on the appeal request was scheduled for Tuesday. But the Trump administration, in a Friday filing at the 5th U.S. Circuit Court of Appeals, asked to withdraw the motion filed by the Obama administration to roll back O’Connor’s ruling on the controversial guidance, according to the Associated Press.
The filing came on the heels of the swearing in of Jeff Sessions as U.S. attorney general. The Justice Department’s filing said the parties involved are “currently considering how best to proceed in this appeal.”
Peter Carr, a spokesman for the Justice Department, said over the weekend that the agency is not commenting further on the matter.
The Human Rights Campaign’s legal director, Sarah Warbelow, said Friday that the LGBT advocacy group is “incredibly disappointed” with the Trump administration’s decision to withdraw from the legal battle.
“Our concern,” she said, “is that it’s a very clear signal that, at a minimum, the Department of Justice — and possibly more broadly throughout the Trump administration — will not protect transgender students.”
All of this comes as the U.S. Supreme Court gears up for a hearing next month over a case regarding a Virginia school board that wants to keep a transgender student from using the men’s restroom at Gloucester High School.
The American Civil Liberties Union filed a lawsuit against the Gloucester County School Board in 2015, arguing that blocking Gavin Grimm, a 17-year-old transgender student who was born female but identifies as a male, from using the bathroom of his choice violates the 14th Amendment, which guarantees equal protection under the law, and Title IX, as the Obama administration defined it.
Grimm was permitted to use the men’s restroom in 2014, but was blocked from doing so after some students complained. As a result, the school board determined that students had to use the restroom that coincided with their biological sex.
A lower court ruled the Virginia school board must accommodate Grimm’s request, but that order is on hold.