A federal judge in Texas on Sunday granteed a nationwide preliminary injunction, sought by West Virginia's attorney general and officials from a dozen other states, blocking the Obama administration's guidance that transgender students must be allowed to use the bathrooms and locker rooms consistent with their gender identity.
"Defendants are enjoined from enforcing the Guidelines against Plaintiffs and their respective schools, school boards, and other public, educationally-based institutions," U.S. District Judge Reed O'Connor, of the 5th Circuit, wrote in his order. "Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendants' interpretation that the definition of sex includes gender identity in Title IX's prohibition against discrimination on the basis of sex.
"Additionally, Defendants are enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of this Order," he wrote.
O'Connor wrote that it "cannot be disputed that the plain meaning of the word sex" was "the biological and anatomical differences between male and female students as determined at their birth" when the term was used in a regulation enacted after the passage of Title IX.
West Virginia Attorney General Patrick Morrisey called the decision "a crucial victory in our fight against federal overreach."
"We are pleased that the court recognized the threat this mandate poses to students' privacy and local decision making over school policy. Halting implementation will protect vital West Virginia school funding while litigation is still pending," he said in a news release.
O'Connor's ruling comes despite the Obama administration pointing to other courts and agencies that have upheld its interpretation that Title IX, the landmark federal law banning sex discrimination by entities receiving federal funding, protects transgender students' rights to use the accommodations that match their gender identities.
The judge's order notes the administration argued that its guidelines, which have been called a directive since they were issued in May, are on their own "not legally binding, and they expose plaintiffs to no new liability or legal requirements." He also noted the administration argued the guidance doesn't "create or confer any rights for or on any person and [does] not impose any requirements beyond those required under applicable law and regulations."
The injunction also follows the April ruling from a three-judge panel of the 4th U.S. Circuit Court of Appeals in favor of allowing Gavin Grimm, a transgender student in Gloucester County, Virginia, to use the boys' restroom at his high school, despite a school board policy banning him from doing so.
That 4th Circuit ruling set precedent for West Virginia, which is part of that circuit. In light of the appeals court ruling, another district judge ordered the school board to let Grimm use the boys' restroom while the court continued to examine his case.
On Aug. 3, the U.S. Supreme Court put that order on hold while justices decide whether they want to hear an appeal from the Virginia school board. If justices deny the request for review by the Gloucester school board, an order requiring the board to let Grimm use the boys' bathroom will be reinstated.
"Notwithstanding the Virginia case, the Texas district judge's order is a national order," said West Virginia University law professor Atiba Ellis, who teaches and writes about civil rights law. "So the federal government is enjoined from pursuing this policy unless and until it gets the injunction overruled or it wins at trial in Texas."
He noted that the order granting the injunction could be appealed to a panel of the 5th Circuit judges, and said the issue will "likely need to be resolved by a higher court or the [U.S.] Supreme Court."
"With the Supreme Court down one justice and ideologically split," he said, "this might not get resolved for a long time yet."
Andrew Schneider, executive director of Fairness West Virginia, a gay, lesbian, bisexual and transgender advocacy group, said the ruling "is quite simply an attack on transgender people with the sole purpose of enshrining them as second-class citizens under the law and inflicting discrimination into their everyday lives."
"This is a single lower court ruling by a judge in a very conservative district chosen intentionally by litigators who sought to ensure a victory," Schneider said. "It is limited in its scope and impact and like other cases it will be appealed and continue to make its way through the court process."
When asked what he would say to leaders of school districts who say they will only allow transgender students to use restrooms consistent with their gender identity if the law requires them to do so, he said, "That is wrong and coldhearted."
Schneider noted that "of anyone in the LGBT community, transgender people are more frequently victims of violence than anyone else and among students as a whole transgender students experience the most discrimination and violence of just about any other group out there," he said. "Forcing transgender girls to use the boys' restroom puts them in danger. This is not some 'academic exercise,' as the attorney general would say, in federal overreach. This is about human lives. This is about young people getting hurt."
"There's a human factor that the attorney general is missing the boat on and you know, he can hide behind legal rhetoric all he wants but kids are getting hurt on a regular basis because they cannot use the restroom that is safest for them, where they're not going to be beset by violence and harassment."
Curtis Johnson, a spokesman for Morrisey's office, did not respond to a phone message left Monday afternoon.
O'Connor's order came on the same day the Gazette-Mail reported that three Mountain State public school districts didn't currently plan to follow the federal guidance. Forty-eight of 55 county school superintendents in the state either didn't return calls for the article or refused to state whether they'd deny a transgender student's request to use the accommodations that match their gender identity.
The superintendents of just four school systems - Hardy, Logan, Preston and Upshur counties - said their districts planned to comply with the federal guidance.
But on Monday - evidencing that many school systems may have to be legally forced to allow transgender students to use accommodations that match their gender identity - Logan County school board President Paul Hardesty said he would, like Clay County Schools Superintendent Kenneth Tanner, resign rather than allow transgender students to use the restrooms that match their gender identity.
He said he'd bring up the issue at Thursday's Logan school board meeting.
"The people of Logan County are going ballistic right now," Hardesty said of the reaction after the Gazette-Mail published its article. "They think we're going to allow boys to go into girls' bathrooms and that's not going to happen."
Logan Assistant Superintendent Darlene Dingess-Adkins, to whom Logan's interim superintendent deferred comment, had told the Gazette-Mail that her school system would follow the guidance and not take a chance losing its federal funding, a possible penalty for Title IX violations. But Hardesty said Monday that while he's not "casting stones" at Dingess-Adkins, he never talked to her about the issue before her statement and he argues the transgender issue is a policy issue that should be left up to the Logan school board, not just the school administration.
"We're just not going to allow it to happen here," Hardesty said.
Delegate Ralph Rodighiero, D-Logan, said Monday that after hearing from numerous emotional constituents, he decided to begin drafting a bill banning transgender people from using restrooms consistent with their gender identity.
He said the bill was based on other similar bills introduced throughout the country. North Carolina drew swift backlash from numerous corporations after it enacted a similar bill. On Friday, the NBA announced its all-star game would be held in New Orleans, instead of Charlotte, because of the state's legislation.
Rodighiero said he feared "perverts" who would pose as transgender to enter women's restrooms. Opponents of allowing transgender individuals to use the restrooms that correspond with their gender identity have frequently said they fear rapists will dress up as women to enter women's restrooms to sexually assault women and children, even though hundreds of organizations that work with victims of violence against women signed a joint statement saying bathroom bills won't prevent sexual violence.
Asked about those organizations' stance, Rodighiero said "you've got experts in every field that's got opposite opinions than what the other does."
When a reporter noted that transgender people already were using the bathrooms of their choice, with no outcry until the issue became a controversy in recent years, Rodighiero said, "I made mistakes before not knowing it but when I make a mistake knowing, that's when the line changes."
He said he had spoken to about a dozen lawmakers who supported the potential legislation.
The Associated Press contributed to this article.
Reach Erin Beck at erin.beck@wvgazettemail.com, facebook.com/erinbeckwv, 304-348-5163 or follow @erinbeckwv on Twitter.
Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow @RyanEQuinn on Twitter.