Reed O'Connor blocks LGBTQ policy guidance, jumping ahead of Title IX rule challenges

When there's a Northern District of Texas will, there's a way.

On Tuesday, an ultraconservative federal judge in the Northern District of Texas issued a ruling blocking the Biden administration’s interpretation of the sex discrimination ban in the Title IX education law to include protections against discrimination based on sexual orientation and gender identity.

Sort of. Somewhat. Maybe.

The ruling from U.S. District Judge Reed O’Connor is a 112-page attack on the effort to protect LGBTQ students from mistreatment in schools. It is not focused on the Biden administration’s Title IX rule set to go into effect August 1, which contains an interpretation of the “sex” discrimination ban as well as addressing several other issues. There are at least nine challenges to that rule, including one filed more recently by the Carroll Independent School District that is pending before O’Connor.

Instead, the ruling issued by O’Connor on Tuesday addressed Texas’s challenge to earlier “guidance documents” issued by the Education Department interpreting Title IX in the wake of the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. In that case, the Supreme Court held that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation or gender identity.

It takes until page 61 to get to O’Connor’s apparent reason for issuing the June 11 ruling: “There are currently several cases across the country involving similar APA challenges to either the Department’s Guidance Documents or the Final Rule. This is the first case to reach the merits of whether such agency action—here, the Guidance Documents—is lawful.”

The first preliminary injunction hearing in one of those challenges to the “Final Rule” — the one led by Tennessee — was held before U.S. District Judge Danny Reeves on Monday. The next day, well before Reeves would be expected to rule, O’Connor apparently wanted to be first out of the gate on the “merits” — even though he was not ruling on the actual rule set to go into effect in August. (A rush by O’Connor here is further suggested by several errors throughout the ruling, including a potentially substantive one in the conclusion and judgment.)

And yet, rule he did, with 112 pages of dismissive condescension that ultimately purports to vacate the guidance documents, declare them unlawful, and enjoin the Biden administration from enforcing the guidance documents against Texas or its schools.

How this matters — in light of the final rule — is unclear.

The guidance documents had already been blocked in 20 states as a result of another case currently on appeal. It’s also mid-June, and the final rule is set to go into effect on August 1, so the guidance documents could quickly become, essentially, irrelevant.

And yet, given that O’Connor also has a Title IX Rule challenge in front of him, it’s possible that he could use Tuesday’s ruling to serve as a backdrop for a quick preliminary injunction ruling in that case after briefing is complete next month.

I am closely watching these challenges, and expect there will be much more on this in quick order, so, stay tuned.

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The groundwork

Before we get into this, let’s be clear: O’Connor — though a George W. Bush appointee — was a Trump judge before they starting pushing out Trump judges from the FedSoc factory.

He is perhaps best known for trying to kill the Affordable Care Act, but he also has a substantial history of ruling against LGBTQ people. When he had a chance to combine those in a lawsuit challenging HIV-prevention PrEP coverage under the ACA’s preventative care coverage, he went all in — first siding with the plaintiffs on their anti-PrEP claim, but then trying to end the preventative care coverage requirements altogether. That case is still on appeal before the U.S. Court of Appeals for the Fifth Circuit.

Back to Tuesday. In O’Connor’s Title IX “guidance documents” ruling, he first decided that the case could and should be decided — rejecting several arguments from the Biden administration that the case shouldn’t be heard, shouldn’t be heard now, or shouldn’t be heard in a challenge brought by Texas.

Those are all great for a Fed Courts final — and some of the arguments there are important ones — but, you’re here to read about O’Connor’s Title IX ruling, so, I’ll skip ahead to that.

As O’Connor put it — perhaps aptly, in light of his approach to the Supreme Court’s Bostock ruling — “[A]s it relates to the Texas’s contrary-to-law claim, the Court’s analysis proceeds on a blank slate.”

It was, of course, not a blank slate simply because no court issued a merits ruling on the guidance. There is a whole body of related law to deal with — if you’re being an honest judge. And yet, without a casual approach to Supreme Court precedent, it would be difficult, if not impossible, for O’Connor to reach the ruling he did.

It was also so instructive to have read O’Connor’s ruling just after finishing my report on U.S. District Judge Robert Hinkle’s ruling that Florida’s ban on gender-affirming medical care for minors is unconstitutional.

In that ruling, Hinkle told us, “Gender identity is real. The record makes this clear.” As to the Florida officials being sued, he added, “The defendants, speaking through their attorneys, have admitted it.” Later, he made a somewhat simple statement, “Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender.”

O’Connor’s ruling simply does not accept the premise or the conclusion. He is one of the “transgender opponents” of whom Hinkle wrote.

Where Hinkle showed detailed knowledge of how transgender people “transition” — a multipart process that looks different for each people — O’Connor showed almost willful ignorance at times.

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The ruling

Then there is Bostock.

“Defendants still maintain that Bostock supports the expanded definition of ‘sex,’” he wrote. “But this argument falls flat. Bostock stated without equivocation that its holding only applies to Title VII.“

The Supreme Court deciding only the case in front of it is, generally, what it does. In this instance, it isn’t even judicial minimalism: The case was about Title VII, and the court said that it was only deciding that. Of the effect of the ruling on other laws, Gorsuch noted, “[N]one of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” This is a truism that O’Connor essentially turns into an explicit exemption from the rationale underlying the ruling.

That is absurd, and O’Connor’s writing here sounds it.

On top of that, O’Connor only engaged with Bostock to explain why Title IX is different than Title VII. This is missing a key part of judging — addressing the fundamental reasoning that led the Bostock court to its conclusion.

For example, at one point, O’Connor stated:

O’Connor didn’t even get to that dismissal of Bostock until 15 pages into his merits discussion. First, he laid the groundwork for that by going through dictionary definitions of “sex” and “historical context” to argue that the understanding of “sex” at the time was focused almost entirely on procreation and biological sex.

Because, in O’Connor’s world, any other thinking — or knowledge — about what “sex” means would be unfathomable, this ultimately enabled him to invoke the “major questions doctrine” and make statements like this: “To begin, the Department lacks the authority to rewrite Title IX and decide the major policy question of whether discrimination on the basis of sex should include gender identity.”

Simply put, one cannot make that claim with a straight face so long as Bostock exists as a Supreme Court opinion. To look at Bostock would be to see that — at the very least — the Education Department and Justice Department’s view of Title IX is a reasonable and logical one in light of Bostock.

You don’t need to dig deep into Justice Neil Gorsuch’s Bostock opinion to see how far astray O’Connor has gone.

You could turn to the opening paragraph:

In case you — or O’Connor — missed his point there, the second paragraph lays out the fundamental reason why this ruling was, as Gorsuch put it, “clear.”

The refusal on O’Connor’s part to credit Bostock controls virtually his entire opinion, from its standing decision to its conclusion that the guidance documents constituted “final agency action” opening them to this court review to the merits.

For 112 pages, O’Connor ignored the import, rationale, and meaning of Bostock in order to claim that what the Education Department was doing in the wake of that ruling was somehow going too far.

More offensive than that, however, is O’Connor’s refusal to accept — to return to Hinkle’s opinion — the fact that gender identity is “real.”

O’Connor simply does not accept that transgender people are real, insisting on referring to transgender women, for example, as “biological men” and vice versa throughout.

O’Connor’s unwillingness to accept transgender men as men and transgender women as women poisons his ruling. As he put it, “[T]he logical consequences that would result from the Guidance Documents’ expanded definition of ‘sex’ conflict with Title IX’s ordinary meaning.” He goes on, dismissively:

Most obvious is that the Department’s expanded interpretation injects notions of self-professed and potentially ever-changing gender identity into “sex,” rendering other provisions of Title IX meaningless.

This is O’Connor’s court, and Bostock has no power here.

With all of that, O’Connor concluded, accordingly, that the Education Department “changed the text of the statute the Department professed to interpret” because “the obligation not to discriminate on the basis of sexual orientation or gender identity is nowhere within the text of Title IX.”

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The remedy

Despite all of that, it’s not clear what O’Connor actually did on Tuesday.

He purported to vacate the guidance documents — which, are just opinions, and if the Education Department and Justice Department are right about the law, then, their interpretation exists outside of the guidance documents. Their interpretation — again, if they’re right — is Title IX.

O’Connor also “declared” that the documents are “unlawful.” And, in a follow-up declaration that, I believe, has a double-negative making it mean the opposite of what his ruling otherwise suggested, he wrote, “Relatedly, the Court also DECLARES unlawful the interpretation in the Guidance Documents—as well as in any future agency guidance documents—that the anti-discrimination provisions of Title IX do not include sexual orientation or gender identity.”

Finally, he also enjoined enforcement of the guidance documents or “any future agency guidance documents” against Texas or its schools based on the interpretation that “sex” includes gender identity and sexual orientation in Title IX.

And yet, in a “maybe this ruling means little to nothing” note hidden mid-paragraph on page 108 of the ruling, O’Connor acknowledged, “the Court carefully tailors the scope of the injunction to redress the violation established and to also avoid upsetting competing interests.” What does that mean? Well, here’s what O’Connor wrote:

Importantly, this injunction does not extend to the Final Rule or, broadly speaking, the general Title IX interpretation that could underlie a future final rule. Instead, the injunction pertains only to the Guidance Documents in this case, along with any future non-final rule agency action, such as guidance documents, that rely on the errant Title IX interpretation declared unlawful.

So, this doesn’t apply to the “Final Rule” or the interpretation underlying that — which is virtually the same as the “errant Title IX interpretation declared unlawful.”

I think it is best to say that this ruling was Reed O’Connor putting down his marker: He does not like this interpretation of Title IX.

What he does with the actual rule challenge in front of him, and when he is able to issue a ruling in that case, likely will end up being more relevant to litigation and to the Biden administration’s efforts to protect LGBTQ students in Texas and elsewhere in the long run.