Federal lawyers have asked the Fifth Circuit Court of Appeals to overturn a ruling that placed a nationwide injunction on a federal policy ensuring bathroom access to transgender students. Dominic Holden writes:
The case at issue, brought by Texas and several other states last year, centers around guidance documents that say transgender students and workers should be granted access to restrooms and other single-sex facilities that match their gender identity. The federal agencies behind the guidance argue the rights are protected by existing civil rights laws that ban discrimination on the basis of sex.
US District Court Judge Reed O’Connor, however, sided with the states by ruling that the guidance likely exceeded the executive branch’s authority because there was no rule-making process. He issued a temporary injunction in August that applied nationwide, suspending enforcement of the guidance documents. His order also blocked agencies from starting new enforcement actions and barred government lawyers from raising certain arguments in ongoing lawsuits.
O'Connor's ruling was just one of a handful from federal judges in Texas who have repeatedly placed nationwide holds on Obama policies regarding immigration, labor rules, LGBTQ policies, and abortion.
The rule-making process argument is also a ruse.
Some of the cases in which Fifth Circuit federal judges issued nationwide injunctions pertained to policies that had gone through the formal rule-making process, including the transgender and abortion-related health rule that Judge O'Connor also blocked on the final day of 2016. In other words, the judges are blocking Obama policies regardless of whether they’ve gone through the formal notice-and-comment rule making process.
But time is running out for the administration. On Tuesday, the Senate began the confirmation process for Sen. Jeff Sessions as attorney general. Sessions has taken multiple anti-LGBTQ votes throughout his career and, if confirmed, could easily opt to reverse course on this and many other cases.