By Christopher Collins of the Times Record News

The Obama administration now is playing down the power held by the guidance it issued to schools in May that directed them to allow transgender students to use the bathroom matching their gender identity.

In the federal government’s first response to a lawsuit brought against it by Texas and several other states, U.S. attorneys write that the guidance to schools was just that — guidance — and not a mandate to adopt programs. In filing the suit, plaintiff states wrote the guidance constituted a threat: make bathrooms available to transgender students or face the loss of federal funding.

That is simply not true, the U.S. government writes in its memorandum filed late Wednesday.

“These guidance documents — which are the focal point of plaintiffs’ claims — are merely expressions of agencies’ views as to what the law requires,” the filing reads. “They are not legally binding, and they expose plaintiffs to no new liability or legal requirements.”

Previously in the lawsuit, Texas and 14 other states and individuals filed for an injunction against the federal government in a Wichita Falls federal court. If granted, the injunction would block the Obama administration from forcing school districts in those states from complying with its transgender bathroom directive.

The lawsuit initially was filed May 25, and subsequent filings likened Obama’s guidance to putting “a gun to the head” of states. Among plaintiffs is the Harrold Independent School District, led by Superintendent David Thweatt, in Wilbarger County.

Whether the federal government ever actually threatened to pull funding from schools out of compliance with its guidance is up for debate. The guidance does not have the force of law, but it did appear to imply that schools could lose money by not adopting more inclusive bathroom policies.

In Wednesday’s brief, U.S. attorneys wrote that plaintiffs cannot prove the guidance would cause “irreparable harm” and thus should not be awarded an injunction.

“The threat of irreparable harm or injury must be ‘real,’ ‘substantial’ and ‘immediate,’ not speculative or conjectural,” the brief reads.

In a Thursday interview with the Times Record News, Thweatt accused the federal government of “backpedaling pretty fast” from the message it originally sent to states.

“To me, it’s a ridiculous argument,” he said. “It’s like a Jedi mind trick — there is no ‘harm’ here.”

Tweatt said he’d consult with state’s attorneys on whether to go forward with the suit. After all, if the U.S. government isn’t going to pull federal funds, there may not be any need for an injunction.

The Texas Attorney General’s Office declined comment Thursday.

Additionally, both sides in the lawsuit are collecting allies.

Texas has added three new plaintiffs since the suit was first filed, in addition to a conservative, pro-family group that has filed a memorandum of support. On Wednesday, the American Civil Liberties Union of Texas, GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund Inc, the National Center for Lesbian Rights and the Transgender Law Center responded by filing an amicus brief in support of the defendants.

“The issues pending before the Court are of acute concern to (us) and the community they represent, who may stand to be directly impacted by the Court’s ruling,” the brief reads. “Transgender people face staggering levels of discrimination in schools, workplaces and sex-segregated facilities. Calls for legal help in this area are consistently among the most numerous that (we) receive.”

It’s unknown when the federal judge assigned to the case will rule on the injunction motion, or, now that the U.S. government has argued its guidance carries no legal weight, if the lawsuit will continue at all.

Defendants' Opposition to Plaintiff's Application for Preliminary Injuction