DOJ Withdraws Objections to Injunction Blocking Guidance Requiring Schools to Allow Transgender Students to Use Restrooms that Match Their Gender Identity

Tuesday, February 21, 2017

The Trump administration submitted a legal brief withdrawing the government’s objections to an injunction ordered by a federal court that had blocked guidance requiring that transgender students be allowed to use restrooms that match their gender identity.

The Justice Department's withdrawal of objections does not change the situation for public schools, as a federal judge had already placed a temporary hold on the guidance as a lawsuit by different states moved through the courts. It does, however, suggest that the Trump administration will take a different approach to transgender rights than the one taken by the Obama administration.

The brief, filed in the Court of Appeals for the 5th Circuit, is part of a lawsuit by 12 states opposed to Education Department guidance issued in May of last year directing the nation’s public schools to allow transgender ­students to use bathrooms, locker rooms, and other facilities that correspond with the student’s gender identity. The Obama ­administration took the position that barring the students from ­bathrooms that matched their gender identity was a violation of Title IX, the federal law that prohibits sex discrimination in public schools.

U.S. District Judge Reed O’Connor had sided with the states and issued a temporary injunction blocking the guidance of the Department of Education. The Obama administration appealed the decision and asked that the injunction apply only to those 12 states. Arguments in the case were scheduled.

The Justice Department and the suing states filed a joint brief asking the court to cancel arguments, explaining that “the parties are currently considering how best to proceed in this ­appeal.” The request was granted.

The Supreme Court is scheduled in March to hear a Fourth Circuit Court of Appeals case dealing with the issue of transgender students using the bathroom of the gender with which they identify.  The future of this case may be affected by the filing of this brief. 

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