Feds To Appeal Injunction in Texas Transgender Discrimination Lawsuit

Ken Paxton
Patrick Michels
Attorney General Ken Paxton at the 2016 Texas GOP convention in May, where he and other state leaders promised to keep trans Texans from choosing which restroom to use.

The U.S. Department of Justice (DOJ) plans to appeal a Texas judge’s injunction barring the Obama administration from implementing guidelines aimed at protecting transgender students against discrimination.

DOJ attorneys announced in court documents Friday that they’ll file formal notice that they’re appealing the injunction to the 5th U.S. Circuit Court of Appeals on or before October 20.

U.S. District Judge Reed O’Connor issued the nationwide preliminary injunction in August, in response to a request from the Texas Attorney General’s Office, which is challenging the guidelines on behalf of more than a dozen states.

“DOJ has a number of strong procedural arguments,” said Ken Upton, senior counsel at the LGBT civil rights group Lambda Legal. “It will be interesting to see what the 5th Circuit does.”

Marc Rylander, a spokesman for Texas AG Ken Paxton, said in a statement that the AG’s office “look[s] forward to defending [the injunction] on appeal.”

“Texas appreciates the thoughtful nationwide injunction from the district court that recognized the federal government overstepped its bounds,” Rylander said.

Upton said it could be March or April before the 5th Circuit rules on whether to overturn the injunction. But as soon as the notice of appeal has been filed, the DOJ can request that the injunction be placed on hold while the 5th Circuit considers the case — a request that could be granted within weeks. If the DOJ obtains a stay of the injunction, the Obama administration could resume implementing the guidance.

A request for a stay of the injunction would first have to go to O’Connor, who would be likely to deny it, Upton said. But the DOJ could then request a stay from the 5th Circuit and, if necessary, the U.S. Supreme Court.

“Given the way the injunction binds the government agencies and DOJ, I think there is a good chance they might get a stay,” Upton said.

After O’Connor issued the injunction, DOJ attorneys filed a motion requesting that he clarify its scope. O’Connor heard arguments on the motion September 30 but has not yet ruled. The DOJ had requested that O’Connor do so by October 3.

Upton said he believes Friday’s filing — in which the DOJ announced it plans to file a notice of appeal this week — was intended “to nudge the judge to rule on the clarification motion before their appeal time runs out on October 20.”

“I think you could call it a friendly reminder that if he doesn’t rule by Thursday he’s going to lose jurisdiction of the case and it’s going to the 5th Circuit as is,” Upton said.

John Wright is a freelance journalist based in Austin. Follow him on Twitter and Facebook.

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Published at 3:51 pm CST
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