Paxton, anti-trans forces win 1st round, but fight continues

UPDATE: On Tuesday Ken Paxton announced he has filed yet another lawsuit against the federal government, this time challenging Health and Human Services regulations protecting transgender people from discrimination in their medical care. See our InstanTEA blog post here.

FW judge’s ruling on trans students guidelines could send 4th Circuit case to SCOTUS

 

Lisa Keen | Keen News Service
KeenNewsService@gmail.com

 

Texas Attorney General Ken Paxton

Texas AG Ken Paxton

In a move that could increase attention on the U.S. Supreme Court, a federal judge on Sunday, Aug. 21, issued a temporary order blocking the Obama administration from taking any action against states that refuse to comply with its guidelines concerning treatment of transgender students in federally-funded schools.

The order, from Judge Reed O’Connor — a George W. Bush appointee — enables at least 23 states that have expressed opposition to the Obama administration guidelines issued in May to ignore those guidelines until the court can rule on the merits of lawsuits challenging them.

The guidelines, from the U.S. Department of Education and the Department of Justice, state that discrimination against transgender students violates federal law against sex discrimination and that schools failing to comply with the laws could lose their federal funding.

A White House spokesman reiterated Monday, Aug. 22, the administration’s contention that the guidelines were “certainly not a mandate” and characterized the lawsuit as an election year attempt to “play politics” with issues involving transgender students.

“[O]ur goal has been from the beginning to provide for the safety and security and dignity of students all across the country,” said John Earnest, press secretary for President Obama.

Lambda Legal and four other national legal groups working on LGBT issues expressed disappointment in Judge O’Connor’s injunction. They said it is likely to confuse school districts trying to help transgender students and goes against “years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination.”

The groups said the injunction would have “no effect on the ability of other courts or lawyers representing transgender people to continue to rely on the federal government’s interpretations of Title IX or on prior decisions that have reached similar conclusions about the scope of federal sex discrimination laws.”

Officials with Resource Center, the LGBT community center in Dallas, on Monday issued a statement saying O’Conner’s ruling “is not the final word on the Obama administration’s efforts to provide civil rights protections for transgender Americans.

The statement continued, “The stay will likely be quickly appealed, first to the 5th Circuit Court of Appeals in New Orleans and ultimately to the U.S. Supreme Court. It’s also important to remember this is just a stay, and not the final ruling of a trial. With other cases in the legal pipeline, the rights of transgender Americans may end up being asserted and confirmed in another, higher court.

“The legal guidance the administration provided — rooted in their interpretation of Title VII of the Civil Rights Act and Title IX of the Education Code, as well as decades of case law, are legally sound” Resource Center’s statement continued. “The judge did not address that in his stay. Rather, he issued his decision based on the arcane process of federal rule-making. The Center believes that justice will prevail and the guidelines will eventually be upheld, but that is cold comfort to transgender students nationwide at the beginning of their school year. Nor does it offer any optimism to transgender people in the workplace, even though the judge did not immediately address the state of Texas and other plaintiff’s efforts to put a halt to the Obama administration’s guidance in that area.”

 

Big enough conflict?

But the injunction could have an effect on whether the U.S. Supreme Court agrees to take up the issue sooner rather than later.

Judge O’Connor’s decision in this preliminary matter contradicts a ruling of another federal court. And conflicts among federal courts make issues more likely to attract Supreme Court intervention.

The Fourth Circuit U.S. Court of Appeals ruled that Title IX of the Education Amendments Act of 1972, which prohibits discrimination based on sex by federally-funded educational institutions, prohibits discrimination based on gender identity.

Judge O’Connor for the U.S. District Court of Northern Texas said “the plain meaning of the term sex” does not include gender identity. Noting that the Supreme Court had granted a stay against the Fourth Circuit decision, O’Connor said a decision from the Supreme Court “may obviate the issues in this lawsuit.”

Judge O’Connor’s decision makes clear he thinks states opposing the Obama administration guidelines have a strong case. He said, “the plain meaning of the term sex” in Title IX “meant the biological and anatomical differences between male and female students as determined at their birth.” The guidelines, therefore, are “contrary to law.”

In the preliminary ruling, O’Connor said the guidelines pose a sufficient level of threat to the statutes and constitutions of plaintiff states to demonstrate “a threat of irreparable harm” that warrants a temporary injunction.

Starting in 2010, Obama administration agencies began interpreting federal laws barring discrimination on the basis of “sex” to include “gender identity.” That meant laws prohibiting discrimination based on sex provided some protection for people whose gender identity is different from that stated on their birth certificate. In May, the departments of Education and Justice distributed a letter with “guidelines,” saying discrimination against such transgender students violates federal laws and that schools failing to comply with the laws could lose their federal funding.

The letter, said O’Connor, “provides not only must [states] permit individuals to use the [school restrooms and facilities] consistent with their gender identity,” but stipulates that alternative accommodations are unacceptable.

Thirteen states filed the lawsuit, Texas v. U.S., to argue that Congress intended “sex” to refer “only to one’s biological sex, as male or female.” Those states also include Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin.

Ten other states — Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming — filed a similar lawsuit in a federal court in Nebraska.

In granting the injunction, Judge O’Connor said the Obama administration’s guidelines are “clearly designed to target” plaintiff states with “legal consequences” if the states fail to follow the guidelines.

The Obama administration’s guidelines and actions, said O’Connor, “indicate that [states] jeopardize their federal education funding by choosing not to comply” with the guidelines. Thus, he said, those guidelines are both “legislative and substantive” and that the public should have been given an opportunity to comment on those guidelines.

“The information before the Court,” said O’Connor, “demonstrates [the Obama administration agencies] have ‘drawn a line in the sand’ in that they have concluded [states] must abide by the guidelines, without exception, or they are in breach of their Title IX obligations.”

“Permitting the definition of sex to be defined [as the Obama administration has stated] would allow [the administration] to ‘create de facto new regulation’ by agency action without complying with the proper procedures.”

At issue are two federal laws that prohibit discrimination based on sex: Title VII of the Civil Rights Act, which covers employment, and Title IX of the Education Amendments Act, which covers educational institutions.

A brief filed by five pro-LGBT legal groups argued that federal appeals courts governing many of the states opposing the Obama guidelines have already ruled that sex discrimination includes discrimination against transgender people.

The groups include Lambda Legal, the ACLU, the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (formerly known as GLAD), and the Transgender Law Center.

Jon Davidson, national legal director for Lambda Legal, said he does not believe O’Connor’s ruling will increase the probability that the Supreme Court will accept the Fourth Circuit case. He said “a large number of issues” in the Texas v. U.S. case “go beyond what is at issue in the [Fourth Circuit] appeal, such as whether the states, state and local agencies, and state officials that brought the suit were sufficiently harmed” by the guidelines.

“Granting review in [the Fourth Circuit case, Gloucester v. Grimm] wouldn’t resolve all those issues,” said Davidson, “so I don’t think the preliminary injunction in Texas v. U.S. puts pressure on the Supreme Court to hear the Gloucester case.”

Shannon Minter, NCLR’s national legal director, said he thinks O’Connor’s injunction will likely be stayed, noting that, in discussing the “plain meaning” of “sex” in federal law, O’Connor “completely disregards” Price Waterhouse. In that 1989 decision, a majority of the U.S. Supreme Court ruled that Title VII’s prohibition of discrimination because of “sex” include discrimination against an employee based on expectations for an employee’s appearance and behavior based on their biological sex. (Notably, Justice Anthony Kennedy dissented.)

“This is a political case brought to make a political point,” said Minter. “The states don’t have any actual injury. They are just expressing their disagreement with the department’s view of the law, but that abstract disagreement is not a valid basis for a federal lawsuit. This is political posturing at the expense of a small group of vulnerable children.”

The Texas Tribune noted that Judge O’Connor issued a temporary injunction in March of last year to block enforcement of an Obama administration interpretation of the Family and Medical Leave Act that required states to provide to same-sex married couples the same benefits it provides to opposite-sex married couples. Texas Attorney General Ken Paxton withdrew that lawsuit after the U.S. Supreme Court ruled in June of last year that state bans on marriage licenses for same-sex couples was unconstitutional.

© 2016 by Keen News Service

 

 

—  Tammye Nash

Texas Bar won’t sanction Paxton for telling county clerks to ignore Obergefell ruling

Ken Paxton

Texas AG Ken Paxton

Even though he told county clerks across the state of Texas that they could ignore a ruling by the U.S. Supreme Court and refuse to issue marriage licenses to same-sex couples, the State Bar of Texas won’t be sanctioning Texas Attorney General Ken Paxton.

The Texas Tribune reports that the state bar has dismissed a complaint filed against Paxton by more than 200 Texas attorneys, who said the AG “violated his own official oath of office” in June 2015 when he issued a written opinion telling county clerk’s they could ignore the high court’s ruling in Obergefell v. Hodges, which established marriage equality as the law of the land, if same-sex marriage goes against their personal religious beliefs.

Paxton originally promised to back up any county clerks who were sued for refusing to issue licenses, but as it turned out, he didn’t mention that if they were sued it would be them, personally, paying the costs of defending themselves and paying any settlements that might be awarded.

In an Aug. 3 notice obtained by the Tribune, “The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct.” At least, not in connection with that opinion regarding marriage licenses. As a report by the Austin American-Statesman notes, Paxton still has plenty of legal woes to contend with.

On Tuesday, Aug. 9, prosecutors in the felony case charging Paxton with securities fraud and failing to register with state securities regulators urged the Texas Court of Criminal Appeals, the state’s highest criminal appeals court, not to dismiss the charges, as Paxton has asked.

Paxton also faces a separate lawsuit filed by the U.S. Securities and Exchange Commission accusing him on federal fraud violations. He has also moved that those charges be dismissed, and a hearing on that motion has been rescheduled for Sept. 2 in the Sherman federal courthouse

—  Tammye Nash

Ken Paxton files injunction against federal guidances protecting trans students

Texas Attorney General Ken Paxton

Texas AG Ken Paxton

Texas Attorney General Ken Paxton today (Wednesday, July 6) announced that Texas is leading a 13-state coalition asking for a preliminary injunction to block enforcement of “Obama’s bathroom rules.”

“Obama’s bathroom rules” refer to a list of guidances issued earlier this year by the U.S. Department of Education and the U.S. Department of Justice to help school districts avoid discriminating against transgender students. Paxton and other right-wingnuts — including Chief Protector of the Bathrooms Lt. Gov. Dan Patrick — insist that those guidelines, along with Fort Worth Independent School District’s comprehensive policy for interacting and protecting transgender students, put women and children in danger by allowing men to use the same public restrooms and locker rooms as long as the men/boys are willing to declare that they feel like a woman/girl that day.

Federal officials have noted that school districts that insist on discriminating against transgender people risk losing federal money because such discrimination violates Title IX, the federal law that prohibits sex-based discrimination in schools. Federal officials and federal courts have already determined that “sex” in this case means gender and includes anti-trans discrimination.

Paxton said, in his press release, “The nation’s schools, and every place of employment, are now in the crosshairs of the Obama administration, which maintains it will punish those who do not comply with its orders. Schools are facing the potential loss of funding for simply exercising the authority to implement the policies that best protect their students. Every employer is now being threatened for not bowing to anyone that identifies as the opposite sex.”

The press release then goes on to explain that the Obama administration is “attempting to rewrite Congress’ use of the term ‘sex’ in multiple federal lawsuits to now include ‘gender identity.’ If successful this radical change simultaneously opens up all intimate areas within schools and workplaces to members of both sexes.”

Chuck Smith, CEO of Equality Texas, issued this statement in response to Paxton’s motion for an injunction:

“Equality Texas condemns Attorney General Ken Paxton’s refusal to acknowledge the existence of 1.4 million Americans who are transgender, and his choice today to target the most vulnerable segment of that population — transgender kids.

“Attorney General Ken Paxton has already wasted millions of taxpayer dollars, discriminated against his fellow Texans with taxpayer money, and deprived thousands of Texans of their dignity and respect in a losing effort opposing the freedom to marry. Now, the attorney general has determined to waste millions more in an obviously futile attempt to prevent our transgender citizens, and in particular transgender kids, from being afforded the most basic dignity to use the bathroom, despite the fact that the Fourth Circuit and various government agencies have made the law clear.

“His actions undermine federal protections for gay and transgender children. In particular, this injunction seeks to punish transgender students protected by Title IX and the U.S. Department of Education to harm Texans who have done nothing wrong.

“The actions being initiated today by Paxton will ultimately fail, just as they did with marriage equality. Attorney General Ken Paxton shows an obsession with discriminating against the LGBT community. Statements already made by Paxton demonstrated a shameful animus towards the transgender community, which will ultimately lead the Supreme Court to declare all laws unconstitutional which relegate members of the LGBT community to a second class status. The U.S. Constitution will never uphold blatant discrimination against our citizens.”

Following is a list of the 13 states filing for the injunction. The number in parenthesis following each state’s name denotes where, as of 2015, that state ranked, nationally, in terms of the quality of their educational systems:

Texas (31st); Alabama (39th), Arizona (48th), Georgia (35th), Kentucky (10th), Louisiana (43rd), Maine (20th), Mississippi (45th), Oklahoma (34th), Tennessee (28th), Utah (16th), West Virginia (46th) and Wisconsin (4th).

(These numbers are the School System Quality Ranking of each, according to a study conducted by WalletHub and based on “13 key metrics that range from student-teacher ratios to standardized-test scores to dropout rates.”)

And by the way, Ken Paxton is the same one facing has been charged with two first-degree and one third-degree felony counts of violating state securities laws, and similar state charges, too.

—  Tammye Nash

Paxton offers his 2 cents on N.C. bathroom bill

Texas Attorney General Ken Paxton

Texas AG Ken Paxton

Texas Attorney General Ken Paxton — that shining beacon of integrity and knowledge of the law who last year told Texas county clerks they did not have to abide by the U.S. Supreme Court’s ruling on marriage equality and who last month was sued for securities fraud in civil court by the U.S. Securities and Exchange Commission (he is already facing state criminal fraud charges — today issued a statement in support of North Carolina Gov. Pat McCrory.

Paxton released his statement after McCrory announced he is suing the U.S. Department of Justice so he can keep his discriminatory bathroom bill. The DoJ had given McCrory until the close of business today to explain his plan for flushing the bathroom bill or risk losing billions in federal funding for his state.

U.S. Attorney General Loretta Lynch is expected to hold a press conference any minute now to announce what enforcement action the federal government will take against North Carolina.

Here’s what AG Paxton had to say:

“The people of the United States, through their representatives in Congress, enacted the Civil Rights Act of 1964 to ensure, in part, that men and women are treated equally. Congress has not changed this law to mean that individuals may choose whether they want to be male or female for the purpose of public accommodations. One’s sex is a biological fact, not a state of mind, and this threat to North Carolina is the latest in a long series of efforts by an unaccountable federal executive branch. My office stands with Governor McCrory and the people of North Carolina regarding this unconstitutional form of federal overreach.”

May we suggest that AG Paxton crawl into the 21st century and come to terms with the fact that GENDER is not binary and neither is it necessarily defined by biological genitalia.

—  Tammye Nash

Paxton appoints Liberty Institute homophobe Assistant AG

Mateer.Jeff

Jeff Mateer

Texas Attorney General Ken Paxton has appointed Jeff Mateer as Texas’ first assistant attorney general. Mateer replaces Chip Roy, who left the AG’s Office to join Ted Cruz’s presidential campaign.

Mateer was chief counsel for the Plano-based First Liberty Institute, a right-wing group that has been fighting LGBT rights in Texas for years.

Liberty Institute fought the first same-sex divorce case in Texas and, rather than allow the couple to divorce quickly, tied the case up in court for five years. Liberty Institute is the place  all those homophobic florists and cake bakers who don’t want to cater a same-sex wedding can go to find attorneys who will defend them.

Mateer has called the criminal charges pending against Paxton frivolous.

Of note is this endorsement in Paxton’s announcement from another discredited crony:

Edwin Meese, 75th Attorney General of the United States, said, “Having worked with Jeff Mateer on major legal issues, I am pleased to learn that he is joining Ken Paxton’s fine staff, where I know he will do an excellent job.”

Meese was the discredited attorney general under President Ronald Reagan. In 1988, he abruptly resigned from office after a special prosecutor decided not to indict him for actions he took as a government official that benefited a longtime friend, E. Robert Wallach, by sending lucrative contracts to his company Wedtech. Wallach was indicted for racketeering, conspiracy and fraud.

—  David Taffet

UPDATE: Paxton makes huge concession to avoid contempt of court

Ken Paxton

Attorney General Ken Paxton

To avoid facing a contempt of court hearing and possible jail time for ignoring a court ruling that declared the Texas marriage amendment unconstitutional, Attorney General Ken Paxton will issue new guidelines to state employees.

Those guidelines include recognizing married same-sex couples for purposes of death certificates but also for purposes of birth certificates. Refusing to recognize a same-sex couple for purposes of a death certificate led to the contempt charges.

The birth certificate issue has been a problem for same-sex couples for years. Judges in only a few counties including Dallas will allow second parent adoptions, but the second parent’s name doesn’t go on the birth certificate. If an opposite-sex couple is married, the husband is presumed to be the father and his name goes on the birth certificate.

Now the names of a couple that adopts together will both go on the birth certificate, just as it does for opposite-sex couples. For gay couples who have children through a surrogate, both names of the married couple will go on the birth certificate. And for lesbian couples who have a baby and one of the women carry the child, both names of a married couple will go on the birth certificate.

—  David Taffet

Paxton asks to be excused from contempt of court hearing

Ken Paxton

Attorney General Ken Paxton

Attorney General Ken Paxton asked that he and interim commissioner of Texas Department of State Health Services Kirk Cole be excused from a contempt of court hearing on Wednesday, Aug. 12.

The order to appear was issued by U.S. District Judge Orlando Garcia because Cole and Paxton refused to recognize a same-sex marriage for purposes of a death certificate. Their refusal defies Garcia’s marriage-equality ruling that declared the Texas marriage amendment unconstitutional.

Garcia ordered the state recognize the marriage of John and James Stone-Hoskins. James died earlier this year before the Supreme Court ruling. But Garcia’s ruling was made in February 2014 and was affirmed by the Fifth District Court of Appeals in July 2015.

Although Garcia ordered the state to reissue the death certificate immediately, it took Cole’s office two days to comply.

Cole and Paxton had until today to respond to the court with any written defense. Instead, they asked to be excused from appearing. They also asked the judge to rule by 3 p.m. so they’d have time to appeal.

I’m sure Garcia will respond to that request “immediately.”

—  David Taffet

Amended death certificate issued to Stone-Hoskins

jay_james1

James Stone-Hoskins

Kirk Cole, interim commissioner of the Department of State Health Services, issued an amended death certificate last night listing John Stone-Hoskins as “husband” rather than ‘significant other.” Stone-Hoskins had to file a motion in the court of U.S. District Judge Orlando Garcia, who declared Texas’  marriage law unconstitutional in February 2014. Neel Lane, attorney for the Texas marriage-equality plaintiffs, filed the lawsuit.

The amended certificate corrects “James Henry Stone – never married” to “James Henry Stone-Hoskins – married” and “John Allen Hoskins V – significant other” to “John Allen Stone-Hoskins V – husband.”

Cole, along with Attorney General Ken Paxton, face contempt of court charges for violating Garcia’s ruling that was affirmed by the Fifth Circuit Court of Appeals in July 2015 and the U.S. Supreme Court’s Obergefell decision. They are ordered to appear on Aug. 12.

Death Certificate

—  David Taffet

BREAKING: Attorney General Ken Paxton has been booked

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Attorney General Ken Paxton’s mugshot

Attorney General Ken Paxton was booked this morning and released from the Collin County jail following a trio of felony indictments handed down by a Collin County grand jury last week.

The three indictments — including two first-degree felony counts  and a third-degree felony count — stem from a months-long investigation by the Texas Rangers and two special prosecutors who looked into Paxton’s securities practices before he took office.

In 2014, while running for attorney general, he admitted to violating state securities law after failing to register with the State Securities Board before soliciting clients for investors. He paid a $1,000 fine.

First degree felonies carry a prison sentence between 5 to 99 years in prison. A third degree felony carries a $10,000 fine and between two to 10 years in jail.

Tarrant County judge George Gallagher has been appointed to lead the trial.

—  James Russell

Anti-LGBT legislator running for state senate failed to disclose affiliation with conservative non-profit

HughesBryan768_jpg_800x1000_q100

State Rep. Bryan Hughes, R-Mineola

A vocally anti-LGBT Republican state representative failed to disclose his affiliation with a socially conservative non-profit organization.

State Rep. Bryan Hughes, R-Mineola, failed to disclose his leadership role on the board of the Wilberforce and Lincoln Center, Inc. in his six most recent personal financial statements.

(Those can be found here: 2008, 2009, 2010, 2011, 2012, 2013, 2014.)

The vocally anti-LGBT Republican who is running for state senate has been affiliated with the Waco-based center since 2008, according to records filed with the secretary of state.

James William Odom, a Baylor University graduate student and former spokesman for the university, founded the Wilberforce Center for Civic Engagement in 2008. An amended filing later added the name Lincoln.

Odom, Hughes, Oklahoma oil and gas executive Jerome Loughridge and Attorney General Ken Paxton, who was then a state representative, were all listed as directors of the organization.

It is currently listed at Odom’s home address in Waco.

Paxton recently filed an amended personal financial statement indicating his affiliation with the organization. But personal financial statements filed by Hughes between 2008 and 2014 do not list his role with the organization despite its active non-profit status.

Per state law, elected officials must list all entities, including non-profits, where they serve as members of the board, on their statements said Ian Steusloff, a spokesman with the Texas Ethics Commission.

The commission administers and enforces state election code and oversees the collection of all campaign and personal finance reports filed by legislators.

Failure to disclose this information could result in a civil penalty of $500.

On the six most recent statements, Hughes is only listed as a trustee of the Mineola Foundation and between 2010 and 2012 a brief stint as a director of Central America Mining America Group. A September 19, 2014 required periodic report, however, still lists Hughes as a Wilberforce Lincoln director.

Odom’s résumé, obtained from his Baylor University graduate student profile, indicates he founded Wilberforce Lincoln under the name the Leadership Foundation in Oklahoma in 2000. At the time he was a Republican candidate for Congress. The institute was “dedicated to encouraging principled leadership in the political arena for the preservation of a culture that respects life and cherishes liberty.”

It did not operate again until 2008 when it turned to articulating public policy issues of interest to churches and other religious organizations, including “sanctity of life, family law and national indebtedness.”

Odom, who declined to comment for this story, wrote it has remained dormant because he didn’t have “time or resources to develop its programs.”

Cody Terry, Hughes’ chief of staff, said he was unaware of the organization’s existence.

First elected in 2002, Hughes is currently running for state senate to succeed retiring Sen. Kevin Eltife, R-Tyler. In 2014, on The Anderson Cooper Show, he defended a plank on the state GOP’s platform affirming reparative therapy.

Among those endorsing his senate campaign are Texas Values’ Jonathan Saenz, Liberty Institute’s Kelly Shackleford and Texas Eagle Forum’s Cathie Adams and Attorney General Paxton.

—  James Russell