Ten additional states sued federal agencies Friday over their May guidance that Title IX requires schools to allow transgender students to use the restrooms and locker rooms that match their gender identity, even if it differs from their sex at birth.
Including this lawsuit, nearly half of all states are in active litigation involving the rules.
That guidance, from the U.S. Departments of Education and Justice, stirred support from transgender-student advocates and controversy among conservative state leaders, who argued the federal agencies were overstepping their authority by creating a new law instead of interpreting an existing one. (For a deep dive into questions about the limits of administrative guidance, check out this excellent story on thetransgender student issue by my colleague, Mark Walsh.)
The federal agencies argue that the sex discrimination protections in Title IX, a federal civil rights law, apply more broadly to gender identity. The guidance came with an implicit threat that schools found in violation could lose federal education funding.
Friday’s lawsuit—the second large, multi-state action over the federal rules—was filed in federal court in Nebraska. Joining Nebraska in the suit are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming. This lawsuit joins another action, filed by 13 states and led by Texas officials, that also challenges the federal transgender-student rules. Plaintiffs in that suit asked for a preliminary injunction this week, which would halt the rules’ application while their suit is heard.
“The recent action by these two federal agencies to require showers, locker rooms, and bathrooms be open to both sexes based solely on the student’s choice, circumvents this established law by ignoring the appropriate legislative process necessary to change such a law,” Nebraska Attorney General Doug Peterson said in a statement. “It also supersedes local school districts’ authority to address student issues on an individualized, professional and private basis. When a federal agency takes such unilateral action in an attempt to change the meaning of established law, it leaves state and local authorities with no other option than to pursue legal clarity in federal court in order to enforce the rule of law.”
The Title IX guidance is also at issue in dueling lawsuits between the Justice Department and the state of North Carolina over its state law, HB2, which restricts restroom access in public buildings based on biological sex.
Photo: Getty Images
Related reading on transgender students:
A version of this news article first appeared in the Rules for Engagement blog.