Article  Gender Issues

Explainer: States sue Obama administration over school transgender policy

What just happened?

On Wednesday the attorney generals of eleven states filed a lawsuit in a federal court in Texas seeking to overturn a directive from the federal government requiring schools to adopt the administration’s preferred policy on transgender students.

The plaintiffs claim that they “stand behind the singular principle that the solemn duty of the Federal Executive is to enforce the law of the land, and not rewrite it by administrative fiat.” In the lawsuit they add,

Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation

Which states filed the lawsuit?

The state of Texas is the lead plaintiff and is joined by Alabama, Georgia, Oklahoma, Louisiana, Tennessee, Wisconsin, West Virginia, and Utah. The Arizona Department of Education, the Haber-Overgaard Unified School District (Arizona), the Harrold Independent School District (Texas), and the governor of Maine also joined the suit.

Who was named as the defendants?

Four federal agencies and six official were named as defendants:

  • The U.S. Department of Education;

  • U.S. Equal Employment Opportunity Commission;

  • U.S. Department of Justice;

  • Department Of Labor;

  • John B. King, Jr., U.S. Secretary of Education;

  • Loretta E. Lynch, Attorney General of the United States;

  • Vanita Gupta, Principal Deputy Assistant Attorney General;

  • Jenny R. Yang, the Chair of the U.S. Equal Employment Opportunity Commission;

  • Thomas E. Perez, Secretary Of Labor;

  • David Michaels, Assistant Secretary Of Labor For Occupational Safety and Health Administration

What is the policy the states are responding to?

On May 13, the Obama administration sent a letter to all public schools in America notifying teachers and administrators of the regulations they must comply with in regards to their students’ “gender identity.”

The letter states that, to comply with Federal law, policies concerning students must be based on their gender identity and not on their biological sex.

This letter provides guidance on the Obama administration’s interpretation of Title IX of the Education Amendments of 1972, a law that prohibits discrimination on the basis of sex in education programs receiving Federal financial assistance. The administration has reinterpreted Title IX to make “gender identity” synonymous with “sex.”

The key sentence in the letter is “The Departments [ED and DOJ] treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” In other words, if a biologically male or biologically female student “identifies” as the opposite sex, then for almost all purposes public schools and colleges must treat them as such. The only exception, as the lawsuit notes, is in the case of athletics, where transgender students can be excluded from participating with and competing against students of their “identified” sex.

Are all the states that filed the suit led by Republican governors?

No, governors of two of the states involved in the lawsuit (Louisiana and West Virginia) are Democrats.

What is the legal basis for the lawsuit?

The lawsuit maintains that the new rules, regulations, guidance and interpretations at issue are:

  • Being imposed without observance of procedure required by law;

  • Unlawful by exceeding Congressional authorization ;

  • Unlawful by violating the Tenth Amendment;

  • Unlawful by violating the Fourteenth Amendment

  • Unlawfully attempting to abrogate state sovereign immunity;  

  • Arbitrary and capricious;

  • Unlawful and violate Constitutional standards of clear notice;

  • Unlawful and unconstitutionally coercive;

  • Being issued without a proper regulatory flexibility analysis.  

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