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.”
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[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:
