Texas, Ten Other States, File Suit Over Federal Transgender Discrimination Guidelines

A group of states led by Texas has filed a suit in response to new guidelines from the Federal Government regarding the rights of transgender students.

Transgender Bathroom Sign

Texas and ten other states have filed suit in Federal Court over the recent revisions in interpretations of VII of the 1964 Civil Rights Act and Title IX of the 1972 Education Amendments Act to include discrimination based on gender identity, and specifically the guidelines issues earlier this month to public schools around the country regarding dealing with transgender students within the bounds of the law:

AUSTIN, Tex. — The Obama administration on Wednesday faced the first major court challenge to its guidance about the civil rights of transgender students in public schools, as officials from 11 states filed a lawsuit testing both the scope of federal anti-discrimination law and the government’s sweeping interpretation of it.

The officials, in states from Arizona to Georgia to Texas to Wisconsin, brought the case in Federal District Court in Wichita Falls, Tex., and said that the Obama administration had “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 common-sense policies protecting children and basic privacy rights.”

The lawsuit asked the court to block the federal government from “implementing, applying or enforcing the new rules, regulations and guidance interpretations.”

Wednesday’s litigation fed into the nation’s intensifying, and suddenly fast-moving, debate about the rights of transgender people and, in particular, whether the administration has exceeded the scope of current laws defining discrimination in the United States.

Dena W. Iverson, a spokeswoman for the Justice Department, said officials would review the complaint and that “the federal government has strong legal foundations to uphold the civil rights of transgender Americans.”

Although transgender rights have been litigated for years, the issue shifted into the public consciousness, in part because of the May 13 directive from the Department of Education and the Justice Department that a school “must not treat a transgender student differently from the way it treats other students of the same gender identity.”

The government also said that a school had an obligation “to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents or community members raise objections or concerns.” The officials added that “the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

The guidance, signed by two of the government’s most senior civil rights officials, did not carry the force of law, but many conservatives responded with outrage at one of its implications: that federal officials, effectively prodded by President Obama, might deny money to schools that defy the recommendations.

“He says he’s going to withhold funding if schools do not follow the policy,” Lt. Gov. Dan Patrick of Texas said this month. “Well in Texas, he can keep his 30 pieces of silver. We will not yield to blackmail from the president of the United States.”

On Wednesday, officials in other states used language that was only slightly less bellicose and colorful. In Louisiana, Attorney General Jeff Landry said he worried that federal officials would “wreak further havoc on our schools,” and he added that the administration’s guidance “puts the safety and security of all of our children in jeopardy.” And in Arizona, the superintendent of public instruction, Diane Douglas, said the federal government’s approach was “insulting and, quite frankly, intolerable.”

The plaintiffs in Wednesday’s lawsuit include nine states — Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Texas, Utah, West Virginia and Wisconsin — as well as the governor of Maine, Paul R. LePage; the Arizona Department of Education; and school districts in Arizona and Texas.

In their lawsuit, which was assigned to Judge Reed C. O’Connor, an appointee of President George W. Bush, the officials said that the federal government had gone “so far beyond any reasonable reading of the relevant congressional text such that the new rules, regulations, guidance and interpretations functionally exercise lawmaking power reserved only to Congress.”

That argument has become a familiar one, especially after the Justice Department and North Carolina officials traded lawsuits about a statute there that limits public restroom access for transgender people. But the Justice Department has been unbowed, and the attorney general, Loretta Lynch, has made clear her commitment to transgender rights.

“We see you,” Ms. Lynch said this month, addressing transgender people from a Justice Department lectern where she announced the case pushing back against North Carolina’s law. “We stand with you, and we will do everything we can to protect you going forward.”

(…)

[S]ome legal experts and transgender rights advocates questioned the lawsuit’s prospects, and they doubted whether the officials even had the standing to bring such a case.

“I see it as a political stunt, and a really unfortunate one because it’s at the expense of transgender people, including transgender youth all across the country,” said James D. Esseks, an American Civil Liberties Union lawyer who focuses on gender identity and sexual orientation issues. “They’re acting as though the Obama administration’s guidance that came out a few weeks ago is like the first time that anyone has interpreted federal bans on sex discrimination to cover transgender people.”

Carl Tobias, a law professor at the University of Richmond, said the administration “may be pushing the envelope, but not a whole lot.”

On some level, it seems as though this suit may be premature and that the states may be setting themselves up for a dismissal on the ground that they lack standing by filing suit at this point. As I noted when the Departments of Education and Justice issued their letter to American school districts, the only thing that has happened so far is that the two departments have issued guidance to state and local authorities advising them on how the Federal Government will interpret Title VII and Title IX when it comes to alleged discrimination against transgender students. There have been no mandates issued and, outside of a case currently pending in the Fourth Circuit Court of Appeals that could very well make it to the Supreme Court, no enforcement actions taking place based on the new guidelines. Given this, it’s hard to see what damages any of these states could have suffered that would meet the standards necessary to obtain standing in Federal Court.

Advocates for the states, no doubt, will attempt to analogize this case to the lawsuit filed by Texas and a number of other states related to President Obama’s immigration relief executive action. In that case, both the District Court and the Fifth Circuit Court of Appeals rejected the argument that the states lacked standing based largely on the claims in the Complaint that legalizing tens of thousands of undocumented immigrants would compel the states to spend money on everything from driver’s licenses to education to public benefits. Leaving aside the question of whether or not this is true, the Courts let the claims proceed based largely on these allegations. In this case, there doesn’t seem to be much of anything that the states can point to as damages they have suffered, or will suffer, due to guidelines that are not meant to be legally binding. Given that, there would seem to be a good chance that this suit will be far more vulnerable to the argument that the states lack standing to proceed.

Of course, if the states get beyond the obvious standing problems then the Court will be forced to deal with the merits of the claim and the merits of the agency interpretations of Title VII and Title IX to cover gender identity. So far, this issue has only been litigated in one court in the nation, and in that situation the court ruled in favor of the Federal Government. In G.G. v. Glouscester County School Board, a panel of the Fourth Circuit Court of Appeals ruled that the Department of Education’s interpretation of Title IX to cover gender identity should be given deference by the Court and thus generally accepted the Federal Government’s interpretation of the law. That case was remanded for further proceedings pursuant to this ruling, but nonetheless stands as what appears to be the only ruling by a Federal Court on this issue. Additionally while it is not binding upon the District Court in Texas where this suit was filed, or on the Fifth Circuit Court of Appeals where any appeal would be headed, it is persuasive authority and, if we get a different ruling from the Fifth Circuit a virtual guarantee that this issue will be taken up by the Supreme Court sooner rather than later.  In any case, along with the two cases filed in North Carolina law last week, this is yet further evidence that this is an issue Courts are likely to be dealing with for some time to come.

Here’s the Complaint:

Texas Et Al v. U.S. Et Al Complaint by Doug Mataconis

FILED UNDER: Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Alameda says:

    We really are dumbing down at an accelerating rate now.

    I wonder which bathroom these state officials prefer that heterosexual people like Dennis Hastert or Larry Craig should use?

  2. DrDaveT says:

    Once again, one wonders where these people think transgendered persons currently do their business when in public buildings… My guess is that deep down they believe that there were no transgendered people in their states (at least not in public) before this, but that the administration’s policy will somehow create them de novo. Pathetic.

  3. Moosebreath says:

    It also legitimizes stuff like this:

    “As Christopher Adams told the news station, soon after he arrived at the store in Clinton, Utah to buy blinds and storage bins, both 7-year-old Kyler and 5-year-old Emery told him they needed to use the bathroom. Not wanting to leave either of them alone, he brought both children into the men’s restroom.

    Adams said a man then entered the restroom and started verbally harassing him for bringing a girl into the men’s room, calling it “inappropriate” and “dropping the ‘F-bomb.”

    He said the man assaulted him as he tried to escort his children away from the scene.

    “When I turned back around, I got sucker-punched,” Adams told KSL.”

  4. Jack says:

    Since this was simply an Obama decree, the states should simply decree that Obama STFU.

  5. grumpy realist says:

    I’m still scratching my head about all of this. How many transsexuals do we have in the population anyway? And how many of them are that obvious, anyway?

    On one side we seem to have some flaky SJW types screaming that “transsexuals’ rights” means we have to accept everyone’s professed gender as being the same as biology, even if the “professed gender” is only a verbal statement (and everything else is inconsistent), and on the other side we have the social conservatives in a tizzy claiming that this “transexuality card” will be used by male predators to sneak into women’s bathrooms.

    It’s unfortunately that the reality of the situation is being turned into kabuki politics by the SWJ/socon crowd. I’m sure the issue is a great cash-raiser for both sides.

    I wonder what actual transsexuals think? They probably simply want a safe place to pee, just like the rest of us, and devoutly hope that they stop being used as a political football by both sides.

  6. Modulo Myself says:

    @DrDaveT:

    They just learned that trans- people exist. I don’t think they’ve stopped to figure this one out, but the bathroom of the assigned gender will change quickly to no bathrooms at all when trans- people who look exactly like the gender they say they are start appearing.

  7. Tyrell says:

    @Moosebreath: Totally crazy. I have experienced parents bringing little girls into the mens rooms a lot. I have also had women bringing their little boys into the mens room. Nobody had a second’s thought about it.
    Other pertinent philosophies:
    I worked in the construction field for a while. My work involved fitting out and cleaning restroom fixtures and getting them ready for the final inspection. Some of the restrooms were very large. When we got through, you could eat off of them. That place was shining !
    I will say this to women and girls: under no circumstances sit on a toilet in a mens or boys restroom. There is so much gunk on those seats that you can see the germs crawling around.
    Sign in restroom: “Rules – no loitering or hanging out, no smoking, no _ owel litter (T marked out), no wasting water, no writing on walls, no shaving, no eating”
    “This bathroom cleaned and sanitized by T.T. Johnwater & Sons Janitorial Services”
    “Restroom fixtures maintained by Fred P. Philpot Plumbing Co. “
    Read “Under the Stalls” by Seymour Butz, author of “Under the Grandstands”

  8. grumpy realist says:

    And of course the usual suspects over at TAC are in a total panic about how this heralds the destruction of Western Civilization. You get the feeling that the existence of intersex individuals has totally blown their safe little universe filled with Platonic Ideals out of the water and made them realize that Nature is wilder and woollier than they ever expected. (Anything that corresponds to a Platonic Ideal is Good, while anything that shows the limits of the pigeonholing is Bad. Makes you wonder how science ever survived with these individuals.)

  9. Gavin says:

    I’m just glad all these states responded so quickly to the most pressing needs of their people.

    This seems like an item you’d only worry about when… everything else ahead of it was tackled.

    These states have healthcare for all?
    Water usage problems are solved? [I’m looking at you, Texas]
    No more infrastructure issues?

    I really wish politicians would learn how to work big to small. Solving the most pressing needs first would get the biggest bang for the buck.

    Instead, we have this.. brought to you by the same party that continues to talk about running government like a business, while not bothering to do it themselves.

  10. wr says:

    @grumpy realist: “On one side we seem to have some flaky SJW types screaming that “transsexuals’ rights” means we have to accept everyone’s professed gender as being the same as biology, even if the “professed gender” is only a verbal statement (and everything else is inconsistent),”

    Yeah, sure we do. Even if you can’t find anything to substantiate that claim, the very fact that Both Sides Do It means it has to be true.

  11. C. Clavin says:

    Remember when Republicans were against nuisance lawsuits?
    Oh for the days of a sane GOP, again.

  12. Jack says:

    Seen at Volokh.

    But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment.

    According to the federal government, a transgender girl who is told to use the boys’ locker room, or even a separate and private stall, instead of the girls’ facility, has a claim that the school is violating Title IX. A non-transgender girl who’s told she must share a locker room with boys may also have a claim that the school is violating Title IX. But would she not have a similar claim about having to share with students who identify as girls but are biologically male?

    Well, not if her discomfort and “emotional strain” should be disregarded. But this week, in a letter, dozens of members of Congress asked the Attorney General and the Secretary of Education to explain why they should be disregarded. The federal government is putting schools in a position where they may be sued whichever route they choose. . . .

  13. Kylopod says:

    While the exact details differ, the pattern is pretty much the same as it was for SSM: conservative elites exploit an issue they know is an absolute no-brainer by getting bogged down in a process argument so that they can put a respectable face on the opposition, saying “I’m not against gay/transgender people, I’m just against federal or judicial overreach.”

  14. HarvardLaw92 says:

    In the end analysis, good news. It sets up the circuit split we’ll need to get this issue in front of SCOTUS.

  15. Jenos Idanian says:

    It’ll be interesting to see if the Justice Department can send any lawyers to court to argue their case, considering that a federal judge has essentially blackballed them from appearing because they kept lying in his court…

  16. Tyrell says:

    @Kylopod: This is a diversion to get people’s attention away from the real issues. Think about it: were we talking about restrooms two years ago or last year ?

  17. grumpy realist says:

    @wr: Oh, Rod Dreher over at TAC seems to delight in finding the nuttiest of the SWJ types and broadcasting their lunacy far and wide. Nebbermind that they’re not representative of anything but how silly some college students can be, but to dear old Rod, they’re exactly what the average college student is like and it’s mass hysteria, cats and dogs living together.

    If you don’t think that the grifter industry on the right isn’t going to broadcast these weirdos far and wide as “the typical elite college student” to drum up money, you have less cynical expectations than I do.

    Face it: the nuttiest SJWs are going to love all the “attention we’re getting for our cause”, and the right grifters will be happy to provide it for them. It’s not the numbers, it’s how loudly they squawk.

  18. Just 'nutha ig'rant cracker says:

    @Jenos Idanian:
    (click)

  19. DrDaveT says:

    @grumpy realist:

    Makes you wonder how science ever survived with these individuals.

    It didn’t. They are parasitic on science; they do not contribute to it, and indeed actively inhibit it, but rely on its fruits. Like a cult that preaches abstinence, their philosophy would be self-annihilating if actually adhered to.

  20. Tony W says:

    @Tyrell: That’s true – one-two years ago it was all about Ebola, Jade Helm and gay marriage destroying America. Thank god we have moved forward as a nation.

  21. Jack says:

    @Tony W:

    Thank god we have moved forward as a nation.

    Moved forward to a time where bakers, florists, and photographers can be sued for refusing to provide a service to gay couples based upon sincerely held beliefs but music artists can cancel gigs and exercise their rights to refuse service based upon their sincerely held beliefs and be lauded by the left.

    Yay, forward.

  22. KM says:

    @Jack:

    Seen at Volokh.

    But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males.

    Ah, no. There’s is a growing propaganda effort trying to frighten women into not feeling safe. And the kicker in all this? They are explicitly saying straight cis-men will take advantage of women just because they can but somehow this is all because a transperson would like to pee where they know they belong. The sheer effrontery is mind-boggling; they will admit that they are worried about “rapists” but the trans community needs to take it on the chin so we can all continue pretending Johnny Fratboy will stop being a perv? It’s the closest cons ever come to officially acknowledging the concept of rape culture so they immediately find somebody else to pin the blame on.

    In fact, cis-women are starting to support the cause because they are getting hassled by overzealous people making stupid assumptions (short hair, stocky build, manly clothes,etc). Nothing like being needlessly harassed in the bathroom to make you empathize with others who live that way daily. You are just as safe peeing today as you were yesterday, be you male or female – if you are less, it’s because somebody wanting to make sure you’re “in the right place” decided to cause a problem

  23. michael reynolds says:

    Trans-females (male equipment at birth, in transition, either partial or complete) are almost always taking estrogen, and drastically cutting testosterone.

    Now, what does that tell you about the likelihood of any of them committing rape?

    Right. So, that’s bullshit.

    The people most likely to commit rape are those with both the male equipment and the male testosterone. In fact that group commits. . . let me just check my math, and round it off a bit, and. . . yes, it’s basically all rapes. So as @KM says above, this is scapegoating, pinning the crimes of one group (cis males) on a completely innocent group, (trans females.)

  24. humanoid.panda says:

    @Jack: In a similar manner, if you refuse services to James because he is an atheist, you would be in violation of his civil rights. But if you refuse to comment on his blog, you’ll be widely lauded for by the leftist readership.

  25. humanoid.panda says:

    @KM:

    It’s the closest cons ever come to officially acknowledging the concept of rape culture so they immediately find somebody else to pin the blame on.

    This might be the most hillarious thing about this: people who five minutes ago thought that rape culture was a SJW invention to keep men down, are now more aware of it than the most radical feminist. It’s almost as though these people don’t have a shred of integrity.

  26. michael reynolds says:

    @humanoid.panda:

    Mmmm, yep: almost.

  27. Mikey says:

    @michael reynolds: I have two friends who are in the process of transitioning, and one who has fully transitioned. I would trust any them with my son or daughter without question.

    Who wouldn’t I trust? Priests…and Republican politicians…

  28. Mikey says:

    @grumpy realist:

    I wonder what actual transsexuals think? They probably simply want a safe place to pee, just like the rest of us, and devoutly hope that they stop being used as a political football by both sides.

    The people who are really being used aren’t the trans people, anyway–it’s the conservatives who are being prodded and milked for donations by shrewd politicians who know how to exploit issues like this.

    Trust me, if someone is actually trans you probably wouldn’t know unless they told you. We’re not talking about people merely going about in drag, here.

  29. DrDaveT says:

    @michael reynolds:

    Now, what does that tell you about the likelihood of any of them committing rape?

    I think you’ve missed the full stupidity of this ‘argument’. Nobody is claiming that the transgendered are rapists. They’re claiming — are you sitting down? — that heterosexual male rapists and child molesters will pose as transgendered in order to get access to That Secret Room That Women Go To In Packs, the better to commit their preversions.

    If it weren’t so hateful and evil, it would be hilarious.

  30. michael reynolds says:

    @DrDaveT:

    Yeah, I know. I have someone quite close to me in transition. Pretty sure there’s not an article I don’t get a link to.

    It’s particularly bizarre, given that rape is, um, illegal regardless, and rapists are not really known for needing a disguise, or being the sorts of master criminals who wear Mission Impossible masks.

    The weirdness of this whole issue starts off seeming to be about trans folks, and pretty quickly reveals itself to be about some sick puppy straight cis men. Then again, men have been blaming women for rape since biblical times, so what else is new?

    There are days I think I should just drink myself into a coma and check out.

  31. grumpy realist says:

    @Mikey: Yes, from the comments made over at TAC there seems to be deliberate confusion between transsexuals and transvestites.

    I’ll start worrying about transsexuals/transvestites in my public bathroom after we get rid of all the cat-calling women have to deal with every day, mmmkay? I know which one makes ME feel more uncomfortable, and it ain’t worrying about who’s peeing. (hint hint). And if you asked 100 women, I bet you 99 of them would say the same.

    So how about it, so-cons? You ready to take on the issue of streetside harassment of women?

  32. An Interested Party says:

    Moved forward to a time where bakers, florists, and photographers can be sued for refusing to provide a service to gay couples based upon sincerely held beliefs…

    If you think that is unfair, then you must think it is fair for bakers, florists, and photographers to not provide services to blacks, Hispanics, Muslims, etc. if they don’t want to…after all, these providers could have sincerely held beliefs that they don’t want to serve those people…