DOJ drops appeal of order against trans student protections

By : Chris Johnson of the Washington Blade, courtesy of the National Gay Media Association
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The U.S. Justice Department on Thursday formally sought to withdraw its appeal of an order barring the enforcement of guidance assuring transgender students have access to the restroom consistent with their gender identity.

The three-page motion for voluntary dismissal filed under U.S. Attorney General Jeff Sessions is largely a moot point because the Justice and Education Departments have rescinded the underlying guidance, but nonetheless reinforces the Trump administration’s position against federal non-discrimination protections for transgender students in bathroom use.

Jointly issued in May under the Obama administration by the Justice Department and Education Department, the now revoked guidance asserted that denying transgender students access to the restroom in accordance with their gender identity violates the prohibition on sex discrimination under Title IX of the Education Amendments of 1972.

In August, U.S. District Judge Reed O’Connor issued the order barring enforcement the guidance as a result of a lawsuit filed by Texas Attorney General Ken Paxton on behalf of 12 conservative-leaning states and two school districts.

The U.S. Justice Department under the Obama administration had, unsuccessfully, sought a stay on the order and appealed to the U.S. Fifth Circuit Court of Appeals. With new leadership in place under the Trump administration, the Justice Department has now withdrawn that appeal.

According to the motion of voluntary dismissal, the Justice Department consulted with attorney representing the states and was informed they would voluntarily dismiss their pending lawsuit upon dismissal of the appeal.

The decision to terminate the appeal is consistent with a move last month from the Justice Department to withdraw a request before the Fifth Circuit to place a stay on O’Connor’s order as the litigation proceeded on appeal.

The withdrawal of the appeal also comes one day after the U.S. Justice Department declined to appeal a preliminary injunction issued by the same judge in a separate case barring the U.S. government from enforcing a Obamacare regulation against discrimination against transgender people in health care, such as the denial of gender reassignment surgery, and women who have had abortions.

Meanwhile, a flurry of friend-of-the-court briefs were filed before the Supreme Court Thursday in a related case filed by transgender student Gavin Grimm, who’s suing his high school in Gloucester County to use the restroom consistent with his gender identity. The upcoming decision in that case will be the final word on whether Title IX of the Education Amendments of 1972 prohibits schools from barring transgender students access to the restroom consistent with their gender identity.

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