A second lawsuit has been filed by states objecting to the Obama administration’s call for schools to avoid discriminating against transgender students, including the recommendation that trans students be allowed to use restrooms and locker rooms matching their gender identity.
Ten states led by Nebraska filed the suit in federal court in that state, the Associated Press reports. The other states in the suit are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming. Eleven other states, led by Texas and joined by some school districts and public officials, filed a similar suit in May. Both name the U.S. departments of Education, Justice, and Labor as defendants, plus the Equal Employment Opportunity Commission.
The new suit uses much of the same language as the previous one and contends that federal government departments and agencies do not have the right to interpret the law as they did, declaring that a prohibition on sex discrimination in education also bans discrimination based on gender identity. The sex discrimination clause is in Title IX of the Education Amendments of 1972.
“Neither the text nor the legislative history of Title IX supports an interpretation of the term ‘sex’ as meaning anything other than one’s sex as determined by anatomy and genetics,” the suit asserts, claiming the expanded interpretation was “arbitrary and capricious.” It also expresses concern about those who may be uncomfortable with transgender people, saying the federal government had not considered “important aspects of the dignity and privacy issues implicated for schools and other institutions caused by redefining the word ‘sex’ in these statutory schemes.”
In a press release, Nebraska Attorney General Doug Peterson added, “When a federal agency takes such unilateral action in an attempt to change the meaning of established law, it is incumbent upon those who want to maintain the rule of law to pursue legal clarity in federal court in order to enforce the rule of law.”
The federal guidance document on treatment of trans students, issued in May, is not legally binding, but it does advise schools on how to comply with their legal obligations to students. Schools that do not comply may lose federal funding.
The new filing means that nearly half the U.S. states are challenging the Obama administration’s guidance, and doing so based on a “1972 understanding of sex,” notes Zach Ford at ThinkProgress.
“The term ‘transgender’ — recognizing that people identify as a different gender independent of a desire to pursue any kind of surgical change — was only first coined in 1965, just seven years before Title IX’s passage,” Ford writes. “Most of the research informing what society now knows about transgender people and their lives has only been conducted more recently than that — and is very much still underway. But Nebraska and the other states argue that none of that new information should inform enforcement of Title IX.”