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Eleven states sue Obama administration over bathroom guidance for transgender students

Eleven states and state officials filed a lawsuit Wednesday challenging the Obama administration over federal guidance directing schools to allow transgender students to use restrooms and other facilities that match their gender identities.

The federal lawsuit, filed in the U.S. District Court for the Northern District of Texas, states that the guidance “has no basis in law” and could cause “seismic changes in the operations of the nation’s school districts.”

State officials have hinted they might file a legal challenge since the Obama administration released a letter earlier this month from the Justice Department and the Education Department that the federal agencies said was in response to questions from schools around the country.

“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” Attorney General Loretta E. Lynch said in a statement when the letter was released. “This guidance gives administrators, teachers, and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.”

In that letter, the two agencies cited Title IX, which prohibits sexual discrimination at educational facilities that receive federal funding, and said that this extended to how schools treat transgender students. The lawsuit filed Wednesday argues that the Obama administration was “officially foisting its new version of federal law” on schools and accuses federal officials of seeking “to rewrite Title IX by executive fiat.”

Read the lawsuit here

This lawsuit — which bears the names of nine states as well as a governor and another state’s education department — is the first filed in response to the administration’s letter. Although some politicians, parents, elected officials and school districts embraced the directive, others aggressively argued against it and said the administration was overstepping its authority.

Texas Gov. Greg Abbott (R) almost immediately said his state would fight the letter because President Obama is “not a king.” Ken Paxton, the Texas attorney general, accused Obama of trying to “bully Texas schools into allowing men to have open access to girls in bathrooms” and vowed a legal fight.

Last week, Paxton and the attorneys general from Oklahoma and West Virginia wrote to the agencies that issued the guidance questioning whether states could lose federal funding if they don’t comply. Joy Hofmeister, the state education chief in Oklahoma, had been among those who immediately objected after the guidance was released, calling it “disturbing” and saying it carried “an implicit threat of loss of federal funds.”

The Obama administration will issue a directive telling public schools to allow transgender students to use bathrooms that match their gender identity. (Video: Reuters)

Paxton argued Wednesday that the lawsuit was needed to protect Texas schools, saying that they face losing federal money “for simply following common-sense policies that protect their students.” Sen. Ted Cruz (R-Tex.) and Dan Patrick, the state’s Republican lieutenant governor, expressed their support for the suit.

Other officials who signed on to the suit also echoed its language in statements Wednesday. Jeff Landry, the attorney general for Louisiana, who also signed on to the lawsuit, said he would “not allow Washington to wreak further havoc on our schools.” Patrick Morrisey, attorney general for West Virginia, another participant, echoed the lawsuit’s language in saying the federal guidance “forces a seismic shift in local schools.”

Federal officials said Thursday they still had to review the lawsuit.

“While the department will review the complaint, the federal government has strong legal foundations to uphold the civil rights of transgender Americans,” the Justice Department said in a statement Wednesday night.

In a news conference Wednesday, Abbott accused President Obama’s administration of overreach, saying that it was issuing directives on matters that should be dealt with by Congress. Abbott said the state joined the suit to protect the Harrold Independent School District, where the board passed a policy Monday requiring students to use bathrooms coinciding with the sex on their birth certificate. 

The policy “means that the district is in the crosshairs of the Obama administration, which claims it will punish anyone that doesn’t comply with their orders,” Abbott said.

David Thweatt, superintendent of the Harrold school district, said at the same news conference that he knew of no transgender students in his district. But Thweatt said he felt the policy was important to safeguard students’ privacy and said it should no timpact federal funding. 

Harrold, which sits near the Oklahoma border and has 100 students, has made national headlines because it may be the only school system in the nation that permits designated school employees and school board members to carry guns onto school grounds, a policy that Thweatt has fiercely defended.

“We do what we need to do to protect students and do what we think is right,” Thweatt said in an interview Wednesday. Thweatt said he has never encountered a transgender student in his 36 years as an educator, but felt it was important to put a policy in place to preempt a situation that would make students feel uncomfortable in restrooms or locker rooms.

“They’re uncomfortable in their own skin and we need to do everything we can to keep them safe and secure in that growing up period,” Thweatt said. “In this case, we do not need to have our young ladies and young men in a dressing room situation or a restroom situation where they feel threatened.”

Abbott on Wednesday accused the Obama administration of sidestepping Congress, “just as they did with issues like immigration.” Texas, along with 25 other states, filed a lawsuit challenging Obama’s executive action seeking to shield people from deportation. The Supreme Court heard oral arguments in the case last month, after lower courts ruled that the plan could not be implemented.

Some embrace Obama administration’s transgender directive, others vow to fight

The American Civil Liberties Union assailed the lawsuit Wednesday as “a political stunt,” saying that the agencies listed in the suit have not changed any existing obligations under the law.

“This lawsuit is an attack from eleven states on transgender Americans, plain and simple,” James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender and HIV Project, said in a statement. “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.”

Texas is joined in this latest lawsuit by Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin, as well as the Arizona Department of Education and Maine Gov. Paul LePage (R). In addition, the Harrold school district and another small district in Arizona were included.

This lawsuit was filed against the Justice Department, the Education Department, the Labor Department and the U.S. Equal Employment Opportunity Commission, as well as officials with these departments.

The Education Department — which had said earlier Wednesday that it would not discuss pending litigation — did not respond to a message after the lawsuit was filed. The Labor Department and the Equal Employment Opportunity Commission both declined to comment.

The Obama administration’s guidance, released May 13, came just days after the Justice Department and North Carolina filed dueling lawsuits centered on a law in that state banning transgender people from using restrooms that don’t match the gender on their birth certificates.

In the lawsuit filed Wednesday, the states argue that “the Obama Administration’s disregard for federal law as written — and the ability to maintain separate sex intimate facilities — reached its nadir in the wake of events in North Carolina.”

Obama administration officials have been vocal that the fight over transgender rights is “about a great deal more than just bathrooms,” as Lynch said during a news conference discussing the situation in North Carolina this month. “This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them.”

Emma Brown contributed to this report.

Further reading:

What the Obama administration’s guidance said

Federal appeals court sides with transgender teen, says bathroom case can go forward

‘Straight into the paper shredder:’ Texans the first to decry Obama’s schools directive about transgender bathrooms

White House won’t keep federal funding from North Carolina while court battle continues

This story has been updated. First published: 2:12. p.m.