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AUSTIN—The state of Texas, joined by representatives of ten other states, filed a lawsuit May 25 challenging President Barack Obama’s directive demanding all federally funded schools apply a controversial interpretation of Title IX requiring schools to define a student’s sexual identity based, not on biological traits, but on feelings.
On May 13 the U.S. Department of Education and Department of Justice issued a “Dear Colleague” letter giving guidance to all federally funded K-12 schools and universities in their application of Title IX. The one-sentence regulation passed in 1972 as part of the Higher Education Act prohibits discrimination in public education based on sex. The Obama administration interprets “sex” to include “gender identity”—a student’s perceived gender regardless of biological characteristics.
Declaring the federal demands are “unlawful,” “capricious and arbitrary,” the lawsuit calls for a permanent injunction preventing the Obama administration from implementing and enforcing its rules.
In announcing the lawsuit, Texas Attorney General Ken Paxton said, “This represents just the latest example of the current administration’s attempts to accomplish by executive fiat what they couldn’t accomplish through the democratic process in Congress. By forcing through his policies by executive action, President Obama excluded the voice of the people. We stand today to ensure those voices are heard.”
Although the Dear Colleague letter does not explicitly mention any repercussions for failing to follow the guidelines, previous action by the Obama administration demonstrates that failure to comply comes with a high price tag.
Earlier this year a school district outside of Chicago created its own standards for balancing the needs of a transgender female student—a teenage boy presenting himself as a girl—with those of the student’s female teammates. Demanding full inclusion and affirmation of his gender identity as a female, the transgender student balked at the school’s offer of a private changing area and sued the school district demanding he be allowed to use the same locker room facilities as the girls. Citing Title IX, the Departments of Education and Justice threatened to withhold some of the school’s $6 million in federal funds if they did not submit to the student’s demands.
The ongoing battle over recently enacted transgender student guidelines by the Fort Worth Independent School District (FWISD) demonstrates the dissolution of gender norms that Obama’s interpretation of Title IX require. The guidelines permit students to identify as either gender without medical or parental validation and requires district employees and students to affirm the student’s preferred gender identity. The guidelines also require school personnel expunge gender normative language, such as “boys” and “girls,” from the classroom.
Texas Lt. Governor Dan Patrick, who demanded the FWISD rescind the guidelines and fire Superintendent Kent Scribner earlier this month, said Obama’s edict “ignores both common sense and common decency.”
“[It] creates a problem where none existed,” Patrick said in a statement supporting the lawsuit. “It will disrupt schools across Texas, creating potentially embarrassing and unsafe situations for girls who would be forced, under his order, to share bathrooms, locker rooms and showers with boys.”
Patrick said he will continue to push back against the local and federal regulations.
Texas Gov. Greg Abbott called Obama’s directive “rule by executive fiat.”
“The President continues to violate the Constitution by trying to re-write laws as if he were a king. The states serve as the last line of defense against an unlawfully expansive federal government,” he said.
Plaintiffs in the lawsuit include the states of Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, and Georgia; Governor of Maine Paul Lepage; the Arizona Department of Education; Harrold Independent School District (HISD) in Texas and Heber-Overgaard Unified School District in Arizona.
HISD issued new guidelines May 23 in defiance of the Obama administration’s interpretation of Title IX, stating a student’s birth certificate will determine a student’s gender identity on campus and all multiple-occupancy bathrooms or changing facilities “shall be designated for and used only by individuals based on their biological sex.”
In an effort to accommodate students with special needs, the HISD guidelines state, “The Superintendent or campus principal may make reasonable accommodations upon a person’s request due to special circumstances.”
Defendants in the case include the U.S. Departments of Education and Justice and their leadership, the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor and their respective directors. To view the lawsuit, visit: https://www.texasattorneygeneral.gov/files/epress/files/2016/complaint_FM.pdf.
