Texas, Other States, Sue U.S. Government Over Transgender Policies : The Two-Way The Obama administration has argued that gender identity is protected under federal law. The states say the government is overreaching.
NPR logo Nearly A Dozen States Sue U.S. Government Over Transgender Policies

Nearly A Dozen States Sue U.S. Government Over Transgender Policies

Texas, joined by a number of other states, has filed a lawsuit against the Obama administration in response to its directive that public schools allow students to use the bathroom that corresponds to their gender identity.

The plaintiffs include Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, Georgia, the governor of Maine and the Arizona Department of Education.

The lawsuit, filed Wednesday in U.S. District Court for the Northern District of Texas, says the federal government has "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 LGBT advocacy group Human Rights Campaign called the move a "shameful attack on transgender youth."

The concern about safety with inclusive bathroom policies draws criticism from LGBT advocates, as member station KERA reports:

"With virtually no evidence of attacks coming from such policies in any states, [advocates] say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them."

Texas' Stance

"We are suing to keep the federal government out of our children's locker rooms and restrooms," David Thweatt, superintendent of Harrold Independent School District in Texas, said at a news conference. He and state Attorney General Ken Paxton said the Harrold school district decided to adopt its own bathroom policy to protect students' privacy — a policy Paxton said is at odds with federal guidelines, despite including accommodations on a "case-by-case basis," and puts the district at risk of losing federal funds.

Paxton also said the Obama administration had bypassed Congress, "creating new law outside the bounds of the Constitution." Texas Gov. Greg Abbott echoed that in a statement, saying, "The States serve as the last line of defense against an unlawfully expansive federal government, and I applaud Attorney General Paxton for fighting against the President's attempt to rule by executive fiat."

On 'Sex' And Gender Identity

The federal directive issued earlier this month reiterated the Obama administration's stance that gender identity is included in Title IX, a federal law that bans sex discrimination in public schools.

As we reported in April: "In 2015, the Department of Education issued a memo saying that when a school decides to treat students differently on the basis of sex, it 'generally must treat transgender students consistent with their gender identity.' "

The administration's school guidance covers how to handle harassment and what terminology to use, but the bathroom and locker-room policy has drawn the most attention, especially as other states set restrictions on bathroom access.

The federal government says students should be able to use the bathroom that corresponds with their gender identity. It also says schools are allowed to provide single-occupancy facilities if they are made available to all students, without singling out those who identify as transgender.

Wednesday's lawsuit takes issue with the Obama administration's assertion that gender identity is covered by Title IX. The suit argues that Congress' understanding of " 'sex,' as a protected class, refers only to one's biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans."

The Legal Fight Ahead

Beyond the debate about schools, the Justice Department is also in an ongoing legal battle with North Carolina, which passed a law that limits civil rights protections for LGBT people. The issue there is with Title VII of the Civil Rights Act, which is about discrimination in employment, rather than Title IX, which is about education.

The lawsuit filed by the 11 states brings up both of these laws and argues that the federal government is trying to "rewrite" them — "We're not talking about interpretation here," the state attorney general said Wednesday.

The states want the court to declare the "new rules, regulations, guidance and interpretations" unlawful and, in the meantime, to hold off on requiring their implementation.

You can read the lawsuit here: