With two weeks left, the Obama administration has asked a federal appeals court to throw out a lower court’s decision that suspended policies designed to protect transgender people’s access to restrooms — a sign the current leadership of the Justice Department will close shop mid-fight on one of its signature LGBT issues.
Federal lawyers said in a brief filed Friday with the US Court of Appeals for the Fifth Circuit that the previous ruling was incorrect and overly broad.
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With their remedies waning in the lower court — and time running out — the Justice Department’s Civil Division made three arguments to the Fifth Circuit.
The Justice Department said the case is not ripe for judicial review because the government did not violate the Administrative Procedure Act, as Texas and the other states claimed. The guidance for schools and workplaces are not final acts by any agency, the appeal says, and therefore did not require a rule-making process under the APA.
Federal lawyers further contend the states lack standing to bring the case because they “can ignore [the guidance] without legal consequence.” They note that enforcement stems from civil rights laws, not the guidance itself. In the past, the states have bristled at that argument, noting in briefs and oral arguments that the government cited the guidance when threatening to sue school districts that banned transgender students from certain facilities.
Finally, the Justice Department argues that the lower court, under Judge O’Connor, erred by ruling too broadly. O’Connor did so by in applying the injunction nationwide, rather than just within the states that brought the lawsuit, the government lawyers say.
See here and here for the background. As Kerry Eleveld notes, Judge O’Connor cited the fact that this directive did not go through the federal rule-making process in his injunction against it, but other directives, including the health directive that O’Connor also injuncted, did go through that process. As always, it sucks to have to depend on the Fifth Circuit for anything, but there’s not much choice. We’ll see what happens.