Ten states lodged a new legal challenge on Friday against the Obama administration’s requirement that public schools allow transgender students to use bathrooms consistent with their gender identity.
The lawsuit, filed in federal court in Nebraska, comes after 11 other states sued to block the same policy in May. Barack Obama announced the new rules as his administration fought an intensifying battle with North Carolina, which passed a law barring transgender people from using bathrooms and other gendered facilities that don’t match the gender listed on their birth certificates. The federal policy applies to every public school district in the country, and districts that fail to comply risk forfeiting millions in federal funding.
With Friday’s lawsuit, the number of states challenging the policy reaches almost two dozen. Many observers predict that the battle will ultimately come before the supreme court.
Bathroom access is just one flashpoint in a far-reaching clash over transgender rights. This year alone, state lawmakers introduced dozens of bills that would permit broad discrimination against transgender individuals in hiring, housing and business, sometimes on the basis of religion.
In June, the Pentagon announced an end to its ban on openly transgender service members in the armed forces.
But access to gendered spaces is one area where the Obama administration has sought to make a big impact, moving aggressively to make an example of an Illinois school district that failed to fully accommodate a trans girl, and suing North Carolina over its broad prohibitions on transgender peoples’ use of public facilities.
Those actions inspired cries of government overreach which the plaintiffs in this new lawsuit echoed on Friday.
“When a federal agency takes such unilateral action … 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,” said Doug Peterson, the attorney general of Nebraska.
Leslie Rutledge, the attorney general of Arkansas, which joined the lawsuit, blasted the administration’s rule on Friday as “a radical social policy that raises serious safety concerns for school-age children”, “part of a liberal social agenda” and “a detriment to the very children it intends to help”. An earlier statement by the Kansas board of education said the federal rule “removes the local control needed to effectively address this sensitive issue” and called for giving schools “flexibility”.
A spokeswoman for the justice department declined on Friday to comment on the lawsuit. In May, in response to the suit brought by 11 states led by Texas, a justice department spokesman said the government “has strong legal foundations to uphold the civil rights of transgender Americans”.
Advocates for transgender equality argue that restroom and locker room bans carry a severe and negative impact.
“For transgender students, being in a school that affirms and supports their gender identity is critical to ensuring that they too can experience adolescence in a healthy and constructive manner,” read one brief, by leading medical societies, in support of a Virginia student who sued for the right to use the boys’ bathroom. “Refusing to respect and affirm a transgender student’s gender identity communicates a clear, negative message: there is something wrong with the student that warrants this unequal treatment.”
The 10 states joining the lawsuit are Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. In March, South Dakota’s Republican governor, Dennis Daugaard, vetoed a measure that would have banned transgender students from using the restroom matching their gender identity.
At stake is not only the ability of trans students to express their gender identity, but also millions of dollars in federal funding that schools violating the policy stand to lose.
Nebraska, which is leading the lawsuit, expects to receive more than $312m in federal funding for its local school districts next year. South Carolina received $870m last year, and Kansas received $511m for local school districts. Additional money to the states went to specialized schools for the blind or deaf and to juvenile correctional facilities.
In its separate legal battle with the Department of Justice, North Carolina stands to lose $4.8bn on federal funds to its school districts, colleges and universities.
Central to the lawsuit is the meaning of the word “sex” in Title IX of the Civil Rights Act, which outlaws discrimination “on the basis of sex”.
Congress and the Senate have rejected numerous bills that would amend Title IX and other federal civil rights laws to ban discrimination on the basis of gender identity.
In 2014, the education department’s office of civil rights clarified that the federal ban on sex discrimination “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity”. That included “transgender status”, said Eric Holder, the attorney general at the time. The new interpretation was a sharp reversal from the definition of “sex” used by the George W Bush administration. It cleared the way for the education department to take action against individual schools that continued to block transgender students from restrooms and locker rooms.
Obama’s announcement, while not technically a change in government policy, operated like a shot across the bow to all schools – whether or not they currently enrolled any trans students – and all but ensured a broad-based court challenge to his administration’s position on Title IX.
“The legislative history of Title IX reveals no intent to include ‘gender identity’ within the meaning of ‘sex,’” the lawsuit reads. “The term ‘sex’, as used in Title IX and its implementing regulations, means male and female, under the traditional binary conception of sex consistent with one’s genes and anatomy.”
In the court battles that have unfolded so far, the government and its interpretation has tended to prevail. In April, a transgender boy who sued his school in Virginia, Gavin Grimm, won a key such battle before the fourth circuit court of appeals.
The judges rejected a lower court argument that Title IX “allows schools to maintain separate bathrooms based on sex”, where “sex” means the gender assigned at birth based on anatomy.
“The uncontroverted facts before the district court demonstrate that as a result of the Board’s restroom policy, [Grimm] experiences daily psychological harm that puts him at risk for long-term psychological harm,” the fourth circuit ruled.
