School Bathroom Transgender Ruling Sets Up Lengthy Legal Battle

The preliminary injunction issued yesterday by U.S. District Judge Reed O’Connor of Fort Worth that temporarily blocks the Obama Administration’s instructions for public schools to accommodate transgender students has intensified the national debate over students’ use of bathrooms and other facilities. The nationwide aspects of the injunction will be interesting to watch because there are limited circumstances where that is appropriate, and this injunction only applies to those states that recognize the directive from the DOJ under their own state laws,” says Dallas attorney Shonn Brown of Lynn Pinker Cox & Hurst. “The big question is what does ‘sex’ mean. The differentiation between ‘biological’ and ‘identity’ will likely be interpreted differently by other courts, which will ultimately require an opinion of the Supreme Court to resolve. Also, this is a temporary order, which places a lower burden on the plaintiffs to show ‘likelihood’ of prevailing, whereas at the permanent injunction phase there is the higher standard of a trial on the merits. Federal officials interpreted the word “sex” in anti-discrimination statutes to also cover gender identity. They also argued that the lawsuit was filed too soon because the transgender policy isn’t binding and no enforcement action has been taken. Attorneys representing Texas, however, said the guidelines “obliterate” past rules, putting Texas and other states at risk of losing millions of dollars in education funding if the new guidelines were not followed.

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