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Paxton sues over Obama directive on transgender bathroom access

A more transparent publicity stunt you would be hard-pressed to find.

Best mugshot ever

Best mugshot ever

Texas, joined by 10 other states, filed a lawsuit Wednesday to stop a federal directive instructing school districts to let transgender students use the bathroom that corresponds with their gender identity, Attorney General Ken Paxton announced Wednesday.

Calling the Obama administration guidelines “outside the bounds of the constitution,” the McKinney Republican said that the state was taking action to protect a school district near the Oklahoma border that had passed a policy earlier this week requiring students to use bathrooms according to the gender cited on their birth certificates.

“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy puts the safety of their students first,” said Paxton. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of Obama administration which has maintained it will punish anyone who doesn’t comply with their orders.”

The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Paxton said they had joined because the issue was of national importance.

“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” he said.

The Obama administration guidelines stated transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits discrimination on the basis of gender at education institutions that receive federal funding. It does not have the force of law, though school districts could risk losing federal money if they do not comply.

Harrold superintendent David Thweatt, who joined Paxton at the Austin news conference, said his school board had passed the policy out of concern for the “safety, security, and dignity of the children.” None of the 100 students currently enrolled there identify as transgender, he said.

Concerns about the safety of allowing transgender people to access the bathrooms that correspond to their gender identities draw deep skepticism from LGBT advocates. With virtually no evidence of attacks coming from such policies in any states, they say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them.

When asked Wednesday, neither Paxton nor Thweatt could point to instances where allowing transgender students access to the bathrooms that correspond to their gender identities had threatened anyone’s safety.

We all know why that’s true, right? Paxton had previously sent a letter to the feds asking for some “clarifications” on the directive, which was clearly some laying of groundwork for the lawsuit. It’s not the first time Paxton has expressed a deep interest in people’s potty usage, nor is he the first Republican to do so. To get some idea of how ridiculous this all is, Andrea Grimes digs in a bit:

Harrold ISD passed its policy, which according to Paxton makes “accommodations for special circumstances on a case-by-case basis,” on Monday. That’s two days ago. The Obama administration issued its guidelines nearly two weeks ago.

Apparently one of President Obama’s many skills is oppressing people from the past, using time travel. What a mighty coincidence that, on May 23, Harrold ISD, which says it has no transgender students, decided to pass a papers-please bathroom policy that affects none of its students. And then on May 25, Harrold just happened to become the lead plaintiff in an 11-state federal lawsuit against the federal government, arguing that guidelines Obama issued before Harrold even had a bathroom policy violate Harrold’s right to have whatever non-existent policy it wanted, two weeks before.

When I pressed the Harrold ISD superintendent on the curious timing of the policy’s passage, he responded: “We passed the policy because we believe in it. We think it’s necessary to protect the security and safety and dignity of children.”

Well, speaking of security and safety — from what, exactly? At Wednesday’s presser, reporters put pressure on Paxton to cite any examples of transgender people of any age doing harm to others in public facilities. Because it would be impossible, even for a great legal mind like Paxton’s, to present evidence for something that doesn’t actually happen, the AG spun questions back to familiar territory: defending the Constitution, bad Barack Obama, the evil fed, etc.

She documents the more recent previous cases of potty panic from the state GOP, which shows no sign of letting up. Think Progress adds on:

The entire lawsuit is based on a false premise. As Paxton explained at the beginning of Wednesday’s press conference, the federal government’s directives “open all school bathrooms to people of both sexes.” The lawsuit similarly suggests that the guidance requires that “persons of both sexes have a right to use previously separate sex intimate facilities.”

Drawing this conclusion requires both a deliberate misreading of the guidance and a rejection of who transgender people are. The letter issued earlier this month by the Department of Justice (DOJ) and Department of Education (DOE) specifically affirms that “Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.” It simply adds that when doing so, schools must allow transgender students to participate in accordance with their gender identity.

The Texas lawsuit doesn’t even use the word “transgender” except when quoting from other documents, and it uses scare quotes to mock the concept of “gender identity” throughout. After describing the guidance as a “massive social experiment” that runs “roughshod over commonsense policies protecting children and basic privacy rights,” it proceeds to layout an unrecognizable understanding of gender identity.

The suit also claims that the guidance requires “seismic changes” to how the schools operate, because they must allow students to “choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day.”

The notion that a gender identity can be chosen or that it can flipflop by the hour ignores the definition provided by the DOJ and DOE — that it is “an individual’s internal sense of gender.” The guidance also repeatedly refers to providing treatment that is “consistent” with students’ gender identity, something that could not be done but for the assumption that their identity is, in fact, consistent.

[…]

The lead counsel on the case is Austin Nimocks. Before working for Paxton, Nimocks was senior counsel for the Alliance Defending Freedom (ADF), where he helped them repeatedly lose caseschallenging marriage equality. ADF is behind multiple other lawsuits challenging the transgender guidance and has also persuaded schools to pass anti-trans policies like Harrold’s by promising to provide free counsel.

Despite the losing record Nimocks brings to the case, he may prevail at the district court level. The only judge on the bench in the federal district court in Wichita Falls, where Harrold ISD is located and where the suit was filed, is Judge Reed O’Connor. In 2014 and early 2015, when federal judges were ruling in favor of same-sex marriage across the country, O’Connor was one of the only judges — and indeed, one of the last judges anywhere — who ruled against it.

So there may be a step or two backwards before we can move forward. Though who knows, maybe it will be harder than even Ken Paxton thinks to get a judge to buy his mishmash of baloney and fact-free fearmongering. I look at it this way: The reason why the courts began ruling against same-sex marriage bans is that the argument against same-sex marriage ultimately boiled down to discredited studies claiming that children raised by same-sax couples did worse than other children, and a general animus towards the whole idea. The former couldn’t stand courtroom scrutiny, and the latter was ruled to be an insufficient cause for a law that targeted a class of people. This is a different kind of case here, since it’s the plaintiffs who are seeking restrictions, but I think this basic principle will eventually play out in the courts. There’s no justification for the anti-trans laws, and I am confident that the courts will, by and large, rule that way. It may yet take awhile, and Ken Paxton may get the legal victory to go with the political bonanza that he hopes to reap, but in the end I believe justice will prevail. The Chron, the Current, Trail Blazers, the AusChron, and the Press has more.

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2 Comments

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