Sam Olens and the Transgender Injunction

A Texas court has granted a temporary injunction in a case brought by a 13-state coalition and two schools districts. At issue is a “Dear Colleague” letter from the Department of Education that purports to require schools to offer restroom facilities consistent with the self-expressed gender of the students, rather than the gender assigned to them at birth.

The Federal Court, in an opinion that can be found here and will certainly be appealed, found that the use of a “Dear Colleague” letter, which requires no notice or public comment or other due process safeguards was inappropriate as a method for mandating this action. The court suggested that it was in within the Department of Education’s power to pursue such a directive, but would have to do so through its rulemaking power (the reasoning is interesting but a bit pedantic for this forum).


The court mentions that the guidance was defective as well, but that doesn’t matter in light of the above.

As an aside, Sam Olens’s press release describing the above is slightly odd. It doesn’t mention bathrooms, gender identity, or anything to let you know what the decision was about, and then it includes this quote:

“We are pleased that the federal court agrees that the guidance letter is yet another example of the President’s unconstitutional overreach. The Constitution gives only Congress the power to write and rewrite laws. Threatening to withhold taxpayer dollars from schools if they don’t comply with this mandate is unconstitutional. I will continue to defend the Constitution on behalf of Georgians.”

The court’s opinion indicated it was within the power of DoE to accomplish the above, including withholding funding, but it would have to use rulemaking. It is unconstitutional only through procedural due process, not because it lacks the power overall. The part about Congress implies that the decision stated that Congressional intervention would be required to affect this mandate, but that’s not the case at all. The first three sentences are theoretically true but quite a departure from the text of the decision. The last one is totally on point, though. #GoOwls



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