This column by ACRU Fellow Ken Klukowski was published February 12, 2017 by Breitbart.
Justice Department lawyers have asked a federal appeals court to cancel an upcoming hearing on the 13-state lawsuit against the federal government’s transgender directive, essentially buying time to figure out what to do on transgender policy in general and this lawsuit in particular.
Title VII of the Civil Rights Act of 1964 prohibits employers discriminating on the basis of sex, and Title IX requires public schools to provide separate facilities of equal quality for both sexes.
For years, leftists tried to pass statutes like the proposed Employment Non-Discrimination Act (ENDA), which would expand these statutes to include sexual orientation and gender identity as protected classes on equal terms with biological sex.
After years of being unable to pass those bills, on May 13, 2016, the U.S. Departments of Justice and Education under President Obama issued a “Dear Colleague” letter nationwide, informing employers and school that the word “sex” in Title VII and Title IX already includes sexual orientation and gender identity, and that employers and schools not adopting policies embracing those LGBT priorities are therefore violating federal law.
Texas Attorney General Ken Paxton led a lawsuit representing 13 states and additional school districts challenging this directive. On Aug. 21, 2016, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas agreed with the plaintiffs, issuing a preliminary injunction (PI) nationwide, holding that the term “sex” in those federal civil rights statutes refers to biological sex, and blocking the Obama administration’s new policy.
District courts issue a PI when plaintiffs have a substantial likelihood of success on the merits, and other factors are also present in the lawsuit, such that the plaintiffs are entitled to immediate relief even while their case continues to move through the legal process.
The Obama administration appealed that PI to the U.S. Court of Appeals for the Fifth Circuit, filing briefs over the past few months. A hearing before a three-judge panel was scheduled for Feb. 14.
After Donald Trump was sworn in as president and Jeff Sessions was confirmed as attorney general, on Friday, Feb. 10, the Justice Department informed the New Orleans-based appeals court that it was withdrawing its appeal of the PI.
Later that same day, the court granted the request and canceled the court hearing scheduled for Valentine’s Day.
While this is a step forward for the challengers, the case is far from over. So long as the Dear Colleague letter is on the books the lawsuit will continue. The only way it could end without a defeat for one side or the other is if the Justice and Education Departments rescind the policy, abandoning the Obama administration’s redefining of civil rights laws.
By withdrawing the appeal of the PI, the Trump administration has consented to every aspect of the case staying in Judge O’Connor’s courtroom for the time being. Discovery will now take place, followed by the plaintiffs asking for summary judgment against the federal government, which would be a final decision on all the legal issues in the case.
At that point, the Trump administration could accept the defeat, or take the entire matter back to the Fifth Circuit, where Texas and the states were expected to win again.
This case was considered a tossup at the Supreme Court level after the death of Justice Antonin Scalia. But there is no question that the term “sex” in 1964 and 1972 refers only to biological sex. So once President Trump kept his campaign promise to nominate justices who adhere to the original meaning of the Constitution and federal law with his pick of Neil Gorsuch for the nation’s highest court, he constructed a Court very likely to rule against the Dear Colleague letter and for the states.
No word yet on whether dropping the PI appeal is only the first step in winding down a legal challenge that would almost certainly go against the federal government. With its move in the Fifth Circuit late last week, the Trump administration has bought itself a couple months to decide how to proceed.
The case is Texas v. United States, No. 7:16-cv-54 in the Northern District of Texas, and No. 16-11534 in the Fifth Circuit.