Ken Paxton

Paxton’s Transgender Bathroom Lawsuit Goes to Court Friday

The Texas attorney general hopes to block federal guidance on accommodating trans students' use of restrooms at school.


Ken Paxton
Attorney General Ken Paxton at the 2016 Texas GOP convention, where he and other state leaders traded in transphobic rhetoric. Paxton is trying to block the federal government’s recommendations that American public schools allow trans students to use bathrooms according to their gender identity. The case will have its first hearing Friday in Fort Worth.  Patrick Michels

The next major legal battle in the so-called transgender bathroom wars will take place in a federal courtroom in Fort Worth this week.

U.S. District Judge Reed O’Connor has set a hearing for Friday on Texas Attorney General Ken Paxton’s bid to block the Obama administration’s recent guidance that said public schools should allow trans students to use restrooms according to their gender identity.

Paxton’s office, on behalf of 13 states, has requested a nationwide preliminary injunction against the guidance outlined in a May “Dear Colleague” letter issued by the U.S. Education and Justice departments. The states allege the administration has overstepped its bounds by attempting to rewrite federal law to ban discrimination based on gender identity without congressional action.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” Paxton’s office wrote in its initial complaint.

In response to Paxton’s complaint, the Obama administration has argued that the guidance isn’t legally binding, and questioned whether Texas has standing to challenge it, given that the case doesn’t involve a specific controversy over restroom access for trans students in the Lone Star State.

“Indeed, plaintiffs have identified no enforcement action threatened or taken against them as a result of defendants’ interpretations,” the federal government wrote. “Instead, they have alleged no more than an abstract disagreement with the agencies’ interpretation of the law.”

The Obama administration has interpreted Title IX, which prohibits discrimination based on sex in federally funded education programs, to include trans students. And Paxton’s office has said Texas stands to lose $5.9 billion annually, or 12 percent of its revenue for public elementary and secondary schools if it is found in violation of the 1972 federal law.

In response to the administration’s guidance, the AG’s office reportedly shopped a policy restricting trans restroom access to multiple school districts in Texas that was approved by tiny Harrold ISD, near Wichita Falls, which is now the lead plaintiff.

LGBT civil rights groups, which have filed a brief in support of the Obama administration’s position, allege that Paxton is playing politics with the issue.

Ken Upton, senior counsel for Lambda Legal, said he believes Paxton’s office intentionally sought to file the case in O’Connor’s district, given the judge’s record of opposing LGBT rights.

“They just made up this stuff so they could be a litigant,” Upton said. “I don’t even think there is a transgender person in their school district. His [Paxton’s] claim to fame is going to be, ‘How many ways can I get a dig in at the federal government?’”

The case is one of several pending in federal courts across the nation related to trans students’ restroom access in public schools. Last week, the U.S. Supreme Court temporarily blocked a decision from the 4th U.S. Circuit Court of Appeals, saying a Virginia school district must allow a trans student to use restrooms based on his gender identity.

Meanwhile, the Obama administration has filed a lawsuit challenging North Carolina’s House Bill 2, which requires trans people to use restrooms in government buildings according to the sex assigned on their birth certificates. Several Texas GOP lawmakers, including Lieutenant Governor Dan Patrick, have indicated they plan to pursue similar legislation in Texas next year.

Joshua Block, a senior staff attorney for the ACLU, which is representing the trans student in the Virginia case, told the Observer that a nationwide injunction from a district judge in Texas blocking the Obama administration’s guidance would be “pretty unprecedented.”

“I think it would wreak havoc to have something that purported to decide what happened in other circuits,” he said. “I think if an injunction was issued, it would definitely be promptly appealed by the federal government, and you would probably have an emergency petition to the Supreme Court to stop that injunction.”