States Launch Legal Attack Against White House Guidance on Transgender Bathroom Equity

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States Launch Legal Attack Against White House Guidance on Transgender Bathroom Equity

Christine Grimaldi & Jessica Mason Pieklo

The guidance comes at a time when transgender rights are under attack by Republican legislators at the state level. Texas Lt. Gov. Dan Patrick (R) has threatened to defy the administration and encouraged superintendents to do the same.

Eleven states and state officials sued the Obama administration Wednesday over recent federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity.

Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, and Georgia filed the lawsuit in the U.S. District Court for the Northern District of Texas, which could be a friendly environment for the plaintiffs. District Judge Reed O’Connor, a 2007 President George W. Bush appointee, is expected to hear the case.

School districts in Texas and Arizona, the Arizona Department of Education, as well as Maine Gov. Paul LePage (R) also joined the case against the Obama administration.

Nine of the 11 states involved in the legal challenge have Republican governors. West Virginia and Louisiana have Democratic governors.

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“This suit concerns the ultra vires revision of the term ‘sex’ under multiple provisions of the United States Code,” the complaint said. In layman’s terms, that means the plaintiffs are challenging the Obama administration’s power to write a letter that says Title VII and related statutes cover transgender people under the federal definition of “sex,” arguing it is beyond the scope of the administration’s authority.

The public school recommendations outlined in the joint U.S. Department of Education (DOE) and U.S. Department of Justice (DOJ) May 13 letter on transgender students amount to “significant guidance,” lacking the force of law or an executive order. The complaint charges that the guidance failed to go through notice-and-comment rulemaking, but for that very reason, the administration doesn’t need the public to weigh in on transgender bathroom equality.

Typically, the contents of a guidance document do not amount to an “injury in fact,” the basis for successful lawsuits.

A U.S. Department of Justice spokesperson expressed confidence in the administration’s legal standing. “While the Department will review the complaint, the federal government has strong legal foundations to uphold the civil rights of transgender Americans,” the spokesperson told Rewire in an email.

The guidance comes at a time when transgender rights are under attack by Republican legislators at the state level. Texas Lt. Gov. Dan Patrick (R) has threatened to defy the administration and encouraged superintendents to do the same, even if that means forgoing an estimated $10 billion in federal education funds under Title IX.

The plaintiffs in the complaint charge that the Obama administration’s guidance is too burdensome to enact.

“Adapting to the new circumstances put forth by DOE and DOJ requires seismic changes in the operations of the nation’s school districts,” the complaint said. “Schools subject to Title IX must allow students to choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day. Single-sex classes, schools, and dormitories must also be open to students based on their chosen ‘gender identity.’”

However, many school administrators, including the National Association of Secondary School Principals (NASSP), welcomed the administration’s guidance as a much-needed move toward federal recognition of transgender rights. The NASSP is in the process of developing a position statement on transgender student rights in the K-12 education system.