The Biden administration overstepped its bounds when it issued “sweeping dictates” on the rights of transgender students at school, 21 Republican state attorneys general said in a letter this week.
The signees include those from states that have recently passed laws prohibiting transgender students from playing on sports teams that align with their gender identity. The letter includes legal arguments that could set the stage for future state-federal lawsuits over LGBTQ student rights.
The July 7 letter, addressed to President Joe Biden, takes aim at a recent memo in which the U.S. Department of Education outlined its legal arguments that transgender students are protected under Title IX, the federal law that prohibits discrimination on the basis of sex, and a later fact sheet on bullying on the basis of gender identity and sexual orientation.
The memo “represents a 180-degree change from the position taken by ED on the exact same issue just five months earlier,” the attorneys general wrote, citing an opposing legal memo that had been issued in the final days of the Trump administration.
The Biden administration said it would investigate “allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.”
It cited the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that a prohibition of sex discrimination in Title VII, the federal employment law, prohibits unequal treatment on the basis of sexual orientation or gender identity. That interpretation extends to Title IX’s protections, the Education Department argued, referring to a similar memo issued by the Justice Department March 26.
That legal interpretation came as the Education Department collects public comment for a full review of its procedures and policies under Title IX, including those that apply to LGBTQ students.
The federal interpretation applies the Bostock precedent too broadly, the attorneys general wrote. That ruling “held only that firing an employee because of the employee’s sexual orientation or transgender status constitutes discrimination on the basis of sex under Title VII,” they wrote.
“It did not address policies unrelated to employee
hiring and firing—such as sex-separate facilities,” they continued. “Nor did it address Title IX at all. Neither the statute nor the case law cited by [the Education Department] supports the agency’s expansive interpretation.”
Several federal courts have cited the Bostock case as they ruled in favor of transgender students. Groups like the National School Boards Association have advised members that they expect courts to follow that precedent in Title IX cases. And many transgender rights advocates saw it as a favorable sign when the Supreme Court recently declined to take up a school district’s case in a long-running legal challenge with a male transgender student.
The attorneys general argued that the administration’s legal interpretations don’t carry the force of law and that officials didn’t seek appropriate public feedback before putting them into place.
They also questioned an implication in the bullying fact sheet that schools could face punishment if students refer to transgender peers by their previous names or by “pronouns corresponding with that student’s sex.” That may violate the First Amendment, the attorneys general argued.
“Schools are left to wonder whether, per the two documents, your administration will seek to punish them if they exclude boys who identify as girls from the girls’ showers and locker rooms after gym class,” the wrote. “This is a matter of concern for millions of students and parents who appreciate the availability of private facilities for bathing and changing at school. They are entitled to an opportunity to be heard: we Americans are not passive recipients of the law, but rather active participants in the process of its creation and revision.”
Attorneys general who signed the letter include those from states that have passed restrictions on transgender student athletes, including Alabama, Arkansas, Idaho, Mississippi, Montana, South Dakota, Tennessee, and West Virginia.
Texas Attorney General Ken Paxton also signed the letter as his state’s legislature takes up the issue in a special session this month.
Other attorneys general that signed the letter are from Alaska, Arizona, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina.