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Texas Seeks Temporary Block of Rules for Transgender Students

The legal distinction between gender identity and sex will be central as Texas on Friday tries to block the Obama administration's order that public schools accommodate transgender students.

Texas Attorney General Ken Paxton holds a press conference on June 9, 2016 in front of the U.S. Supreme Court to discuss the filing of a lawsuit against the state of Delaware

With the first day of school looming, Texas will go to court on Friday and begin pressing its argument that the Obama administration strayed outside the law by ordering public schools to accommodate transgender students.

In a case expected to come down to the distinction between sex and gender identity, the state’s lawsuit against the federal government is set for its first hearing Friday morning in Fort Worth, where U.S. District Court Judge Reed O'Connor will hear arguments over Texas’ request for a preliminary injunction. Texas, joined by 10 other states, in May sued the Department of Education over the guidelines, which instruct schools not to discriminate against transgender students.

Discrimination against transgender students violates Title IX, a federal statute prohibiting discrimination based on sex at institutions that receive federal funding, the administration said when it issued the guidelines in early May. Those protections, the administration said, extend to gender identity and give transgender students the right to use their preferred bathrooms in public schools.

Schools must treat a student’s gender identity as the student’s sex for purposes of Title IX compliance, the guidelines say. While the guidelines do not have the force of law, school districts could risk losing federal money if they do not comply.

Citing privacy and safety concerns surrounding the use of student bathrooms, lockers and other facilities, Texas Attorney General Ken Paxton moved quickly to challenge the guidelines in court, requesting an expedited ruling ahead of the 2016-2017 school year “to provide clarity to education authorities.” Most Texas schools start classes later this month.

In their original legal complaint — filed on behalf of the tiny Harrold Independent School District — state attorneys argued that Title IX explicitly prohibits discrimination on the basis of sex but not gender identity.

While Congress has added gender identity “next to” sex in other areas of federal law, it has not amended Title IX, the state argued. Instead, the Obama administration has “conspired” to turn schools into “laboratories for a massive social experiment,” the filing read.

The federal government argues that the states have presented an “abstract disagreement” with the Obama administration’s interpretation of Title IX and the U.S. Civil Rights Act without identifying an enforcement action that would cause the states irreparable harm. 

Blocking the administration's enforcement could have "deleterious effects on transgender individuals, who have the right to be free from discrimination in workplace and educational settings," federal attorneys argue. "Plaintiffs have made no showing of any irreparable harm that would justify inflicting these injuries or perpetuating discrimination." 

The lawsuit is part of a national fight that has erupted around the explosive issue of which bathrooms transgender individuals are allowed to use. Non-discrimination protections for gay and transgender residents are not new; many municipalities have had policies on the books for years. But the fight flared up in Texas earlier this year after Fort Worth ISD approved its own policy to accommodate transgender students.

That policy change came after Houston's nondiscrimination ordinance, which would have established protections from discrimination for LGBT residents, was repealed by voters last November — a year and a half after it was first passed by the Houston City Council in May 2014 — largely over bathroom concerns.

Texas gay rights activists have said that nondiscrimination protections are the next frontier in their battle for LGBT people.

It’s unclear whether the judge will rule from the stand on Friday. In its request for an injunction, Paxton’s office asked for a nationwide injunction against the new rules so it would apply to all public school districts and not just those suing the federal government. The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin.

The federal government argues that a nationwide injunction would be inappropriate because it would interfere with other federal courts across the country also considering legal challenges on the issue.

Reporter Alexa Ura will be in Fort Worth covering the hearing beginning at 10:30 a.m. Friday. Follow her on Twitter for updates to this story.

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