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Judge reaffirms nationwide ban on Obama Transgender school bathroom policy

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A federal judge in Texas has largely rejected the Obama administration’s request to narrow a nationwide injunction banning enforcement of an Education Department policy requiring public schools to allow transgender students to use bathrooms and locker rooms corresponding to their gender identity.

In an order issued late Tuesday, U.S. District Court Judge Reed O’Connor made some changes to the ruling he issued in August at the request of 13 states opposed to the policy, but he left the Education Department unable to bring new cases enforcing transgender students’ access to access to what he termed “intimate facilities” across the nation.

Justice Department lawyers had asked O’Connor to limit the injunction’s effect to the 13 states who brought the suit, filed in federal court in Wichita Falls, Texas, about 140 miles northwest of Dallas. However, the judge maintained he had the legal authority to halt the policy nationwide.

“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate. Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide,” O’Connor wrote. “Should the Court only limit the injunction to the plaintiff states who are a party to this cause of action, the Court risks a ‘substantial likelihood that a geographically-limited injunction would be ineffective.'”

The judge said his order wouldn’t have any real impact in states that don’t require gender separation by law or policy, but it would still appear to apply to school districts that apply such rules themselves.

O’Connor, an appointee of President George W. Bush, did agree to allow the federal government to continue to defend the transgender policy in other cases where it is being sued over the issue and to pursue the policy enforcement actions in “litigation not substantially developed” before he issued the order in August. He also said his decision applies only to “intimate facilities” and not to other discrimination against transgender students.

The judge left open the question of whether his order limits Labor Department enforcement of similar policies, as well as the issue of how his ruling applies to bathrooms and locker rooms shared by students and teachers or other staff.

An appeal from the administration to the New Orleans-based 5th Circuit Court of Appeals is expected. The Justice Department told the court last week that it planned to file an appeal by Thursday if a clarification of his injunction was not issued. His clarification order was issued late Tuesday, but dated Wednesday.

A White House spokeswoman did not immediately respond to a request for comment on the ruling. The Education Department referred questions to a Justice Department spokeswoman, who declined to comment.

Texas Attorney General Ken Paxton, who’s leading the suit, welcomed the judge’s latest order.

“The court’s reaffirmation of a nationwide injunction should send a clear message to the president that Texas won’t sit idly by as he continues to ignore the Constitution. The president cannot rewrite the laws enacted by the elected representatives of the people and then threaten to take away funding from schools to force them to fall in line,” Paxton said in a statement.

The case and O’Connor’s nationwide ban are being closely watched not only for their impact on transgender rights, but also as a harbinger of the impact of an ideologically divided, eight-justice Supreme Court.

The Texas court’s nationwide ban creates some curious impacts in other states.

In April, the Richmond, Va.-based 4th Circuit Court of Appeals ruled 2-1 in April that the administration acted within its authority to interpret its own regulations when it issued the transgender bathroom guidance. The ruling led to an injunction allowing a transgender boy to use boys rest rooms at a Gloucester County, Va. high school. The Supreme Court, voting 5-3, temporarily stayed that order pending a decision by the justices about whether to review the case.

While the 4th Circuit ruling remains on the books in Virginia, Maryland and North Carolina, the Education Department appears unable to enforce it in those states as a result of O’Connor’s order. Individual students could still file their own suits.

The Obama administration, liberal backers and some Supreme Court justices have repeatedly warned about the dangers a deadlocked high court poses for differing interpretations of federal laws in different parts of the country.

However, if the 5th Circuit upholds O’Connor’s injunction and the Supreme Court ultimately deadlocks 4-4 on the issue, the ruling could affect the federal government’s authority nationwide—at least until a new justice is confirmed to the court.

Such a scenario already played out once in the legal fight over Obama’s 2012 immigration executive actions, which were blocked by a federal judge in Brownsville, Texas—a ban that remains in place after the Supreme Court deadlocked 4-4 in the case. Legal experts say similar scenarios could recur repeatedly until the court is again able to form a majority in hotly contested, polarizing cases.

There are already signs of some resistance brewing among judges told that rulings never validated by a majority of the Supreme Court — affects courts and litigants hundreds or thousands of miles away.

“Somehow a court sitting in Brooklyn, New York, in the 2nd Circuit, must give full faith and credit to a decision of the Fifth Circuit which may be erroneous?” said Eastern District of New York U.S. District Court Judge Nicholas Garaufis, an appointee of President Bill Clinton, at a hearing last month in a case seeking to challenge the ban on Obama’s immigration policy. “That doesn’t sound like justice to me….I don’t know what’s going on out there to Texas on the border but I know what’s going on in New York. And I’m very concerned about it and I have absolutely no intention of simply marching behind in the parade that’s going on out there in Texas, if this person has rights here.”

Source: Michael Grunwald, politico.com