11 states unload lawsuit on feds over transgender guidelines

by Gregory Tomlin |

(REUTERS/Kevin Lamarque)Texas Attorney General Ken Paxton addresses reporters on the steps of the U.S. Supreme Court in Washington March 2, 2016. That case was about Texas's abortion law. Now, Paxton is the lead in a case against the federal government over transgender access to public school restrooms.

AUSTIN (Christian Examiner) – Eleven U.S. States have filed a bombshell lawsuit against the Obama administration over its "guidelines" that allow transgenders to use the public school restroom of their choice.

Officials from the group of states, which includes Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Utah, West Virginia, Wisconsin and Texas – the lead state in the lawsuit – were also joined by the Arizona Department of Education and Gov. Paul LePage of Maine in protesting the guidelines issued by the Department of Education and Department of Justice earlier this month.

Those guidelines, issued May 13, said schools must allow children identifying as something other than their biological gender to use the restroom of the gender with which they identify – even if it is a crowded boys restroom or a girls locker room. Districts that do not comply could be at risk of losing federal education funds, the guidelines said.

This represents just the latest example of the current administration's attempts to accomplish by executive fiat what they couldn't accomplish through the democratic process in Congress. By forcing through his policies by executive action, President Obama excluded the voice of the people. We stand today to ensure those voices are heard.
- Texas AG Ken Paxton

State officials said the threat of lost funding made the guidelines a mandate and a federal power grab.

The states allege in the lawsuit that U.S. government leaders 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."

The filing also concluded that the heads of the Department of Education, Department of Justice, Equal Employment Opportunity Commission and the Department of Labor had rewritten Title VII and Title IX of the Civil Rights Act of 1964 in a way that is "wholly incompatible with [the] Congressional text."

"Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation," the complaint said.

The action on the part of the states is the latest salvo in an increasingly contentious war of words with the federal government over executive power and state sovereignty under the Tenth Amendment to the U.S. Constitution. That amendment grants all powers not reserved to the federal government in the Constitution to the states.

But, according to the lawsuit, the guidelines provided by the Obama administration rewrite law by "executive fiat," mandating "all bathrooms and showers [be] open to both sexes, while simultaneously permitting different sex athletics subject to limited exceptions. The new policy has no basis in law."

The states also alleged that adopting the guidelines "requires seismic changes in the operations of the nation's school districts. 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.'

The new lawsuit comes several weeks after North Carolina sued the Department of Justice for its threat to withhold federal funding for state programs unless the governor ceased the implementation of House Bill 2, which prohibits biological males from using multiple-occupancy female restrooms and biological females from using multi-occupancy male restrooms. Gov. Pat McCrory explained after filing the lawsuit that he, as the state's executive, could not change the law or refuse to implement it.

Texas Attorney General Ken Paxton said in a statement after announcing the lawsuit that he and leaders in other states pursued the suit because "our local schools are now in the crosshairs of the Obama administration, which maintains it will punish those schools who do not comply with its orders."

"These schools are facing the potential loss of school funding for simply following common sense policies that protect their students," Paxton said.

"This represents just the latest example of the current administration's attempts to accomplish by executive fiat what they couldn't accomplish through the democratic process in Congress. By forcing through his policies by executive action, President Obama excluded the voice of the people. We stand today to ensure those voices are heard."

The lawsuit met with expected opposition from LGBT advocacy groups nationwide as soon as it was filed.

Paul Castillo, an attorney for the pro-LGBT Lambda Legal, said the complaint was an "unprecedented attack against transgender people across the United States.

"These states are demonstrating the great lengths they will go to in order to discriminate against transgender individuals," Castillo said.

The director of the American Civil Liberties Union's LGBT Project also called the lawsuit a "political stunt" and an "attack" on transgender Americans.

These schools are facing the potential loss of school funding for simply following common sense policies that protect their students.
- Texas AG Ken Paxton

"While the Obama administration is being sued, the real targets here are vulnerable young people and adults who simply seek to live their lives free from discrimination when they go to school, work or the restroom," the ACLU's James Esseks said.

"There have been no disruptions, increases in public safety incidents, nor invasions of privacy related to protections for transgender people. The federal agencies named in this lawsuit have not changed existing obligations under the law. Our civil rights laws, including Title VII and Title IX of the Civil Rights Act, have long prohibited discrimination on the basis of sex, and federal courts and agencies have long recognized that this includes protections for transgender people."

President Obama is not named as a defendant in the states' lawsuit, though he did amend federal law by executive order in 2014 to grant Civil Rights protections to members of the LGBT community without consulting Congress. Presidents also enjoy a general immunity from lawsuits under the 1982 U.S. Supreme Court decision in Nixon v. Fitzgerald.

The White House has yet to comment on the lawsuit.