An appellate court panel found Wednesday that Gov. John Bel Edwards went too far when trying to ban discrimination against transgender people in state government.

The case has been part of an ongoing battle over authority and budget between the Democratic governor and Republican Attorney General Jeff Landry.

The three-judge panel, led by First Circuit Court of Appeal Judge Toni M. Higginbotham, of Baton Rouge, unanimously ruled that Edwards had interfered with the authority of the legislative branch. His April 2016 order included “gender identity” protection within the state’s executive branch agencies, including those headed by elected officials, as well as the private companies seeking to do business with state government.

“Clearly, the Louisiana Legislature and the people of the State of Louisiana have not yet revised the laws and/or the state Constitution to specifically add ‘sexual orientation’ or ‘gender identity’,” stated the opinion written by Higginbotham.

She was joined by Judges Allison H. Penzato, of Mandeville, and Guy Holdridge, of Gonzalez. All three judges were elected as Republicans.

Holdridge added a handwritten note to the nine-page opinion saying Edwards' order was “overly broad.”

The judges concluded by stating that upon deciding constitutionality of the order, weighing into the rest of the issues raised was unnecessary.

“We won,” Elizabeth Baker Murrill, who argued the case, said Wednesday.

Fifteen Republican legislators asked Landry to weigh in on which branch of state government has the constitutional authority to add “gender identity” to the protections in Louisiana anti-discrimination laws. Repeated efforts to pass laws that would protect the rights of lesbian, gay, bisexual and transgender people have failed in the Louisiana Legislature.

"This ruling affirms a notion of basic civics that the Legislature makes the law, not the Governor," Landry said in a prepared statement.

Landry is seen as a possible opponent to Edwards’ re-election in 2019. The two, both in their first terms, often have squared off on various partisan wedge issues.

Edwards’ lawyer, executive counsel Matthew Block, did not respond to requests for comment Wednesday about the appellate court decision. But he argued in court that the governor has the authority to set employment standards within the executive branch of state government, including contractors working on state projects.

The governor’s media office issued a statement saying Edwards was weighing the next legal step, which would include an appeal to the state Supreme Court. In the meantime, a lower court injunction forbidding the enforcement of the executive order remains in place.


Gov. John Bel Edwards speaks during the Louisiana Resilient Recovery Kickoff Thursday, August 3, 2017, at the LITE Center in Lafayette, La.

“Discrimination in state government and by state contractors is wrong, makes us weaker, and is bad for business and economic development,” Edwards said in a written statement.

Murrill said the issue was never about sexual preference but whether Edwards could essentially make law by issuing an executive order on an issue the Legislature had not decided.

Federal court decisions have allowed lawsuits on narrow claims of stereotyping discrimination based on whether the person was gay, lesbian or bisexual.

“There has been this continuing narrative by the governor that they are indistinguishable. When they tried to redefine sex as a subjective individual decision, that’s a change in the law,” Murrill said. “Sexual orientation doesn’t swap genders. It doesn’t purport to change definitions from biologically based to a subjective determination of your gender.”

SarahJane Guidry, executive director of Forum for Equality, brought up the National Basketball Association’s decision in February to the professional basketball league’s All-Star game From Charlotte in protest to North Carolina barring the use of transgender people from using bathrooms in public buildings that do not correspond with their sex at birth.

“As we saw with the NBA’s decision to pull out of North Carolina, our state can expect to lose our competitive edge for securing and retaining businesses if we are not proactively fighting for equality,” Guidry said.

Dylan Waguespack, president of Louisiana Trans Advocates, called the appellate court decision “a clear step backwards in Louisiana’s journey to becoming a state that welcomes all families to try to earn a living here and all businesses in search of a welcoming, business-friendly climate.”

The case, Jeff Landry, et al., vs. John Bel Edwards, Docket No. 2017-CA-0173, was the governor's appeal of a December trial court decision by 19th Judicial District Court Judge Todd Hernandez, of Baton Rouge, who ruled Edwards’ order had violated Louisiana's constitutional separation of powers because it circumvented the Legislature. But his order didn’t directly address whether the governor has the power to issue employment policy orders that the other six agency heads elected statewide have to follow.

Follow Mark Ballard on Twitter, @MarkBallardCnb.