Despite progress, transgender rights still besieged

Just days after the federal Department of Education in May issued sensible anti-discrimination guidelines for accommodating transgender students, Texas’ attorney general, Ken Paxton, set out to challenge them.

His team reached out to tiny school districts in North Texas to persuade them to adopt policies that would require transgender students to use bathrooms according to the gender on their birth certificates, which would put them at odds with the Education Department’s new transgender guidelines. Those guidelines direct educators to investigate harassment of transgender students promptly, to use pronouns and names consistent with a student’s gender identity, and to allow transgender students to use restrooms based on their gender identity.

In recent years, federal agencies, including the Education Department, have taken the position that discrimination on the basis of gender identity is a form of sex discrimination, prohibited under federal law, including the Civil Rights Act.

Zeroing in on North Texas, the attorney general’s office encouraged the Harrold Independent School District to adopt an anti-transgender bathroom policy. The choice of district was no accident. Though there was no controversy surrounding transgender students in Harrold, the state’s lawyers knew that any case challenging the federal policy brought there would be assigned to Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas.

They may have been confident that O’Connor, who was appointed by President George W. Bush, would be sympathetic to their effort. In 2015, shortly before the Supreme Court legalized same-sex marriage, he blocked the implementation of a Department of Labor regulation allowing married same-sex couples to take family medical leave even if they lived in a state that didn’t permit same-sex marriage at the time.

O’Connor last Sunday issued a preliminary injunction that prohibits the Education Department from enforcing its guidelines nationwide. In a 38-page order, he barred the federal government from taking enforcement action against discriminatory policies or practices.

The ruling, which the Justice Department is expected to appeal, may lead educators around the country to question whether they need to follow the Education Department’s transgender guidelines as the new school year starts. They would be wrong not to; the rules provide a common-sense approach that makes harassment and stigmatization of transgender students less likely.

Meanwhile, Paxton is determined to block another important protection for transgender people. On Tuesday, his office filed a new lawsuit against the Department of Health and Human Services over a regulatory change aimed at expanding access to medical care for transgender Americans. This case, too, has been assigned to O’Connor.

These legal assaults on equal protection for transgender Americans are based on bigotry and the specious claim that they pose a threat to the safety of others. The toll exacted on this vulnerable population is heavy and will remain so as these cases and other litigation involving transgender laws move through the courts.