Arizona joins lawsuit against US 'guidance' on student restrooms

PHOENIX — Saying the Obama administration is exceeding its authority, Arizona joined with 10 other states Wednesday to challenge “guidance” that says schools must let transgender students use restrooms that match their self-proclaimed sexual identity or face loss of federal dollars.

The lawsuit filed in federal court in Texas contends Congress never gave the administration the power to enact policies on transgender discrimination when it enacted laws prohibiting sex discrimination by schools. Yet in a May 13 letter to schools, the Department of Justice and Department of Education, are taking the position that schools must treat a student’s gender identity as that person’s sex, meaning the 1972 law prohibits discrimination on that basis.

Texas Attorney General Ken Paxton, who is taking the lead, said in his legal filings that federal agencies “have conspired to turn workplaces and educational setting across the country into laboratories for a massive social experiment, flouting the democratic processes, and running roughshod over commonsense policies protecting children and basic privacy rights.”

Arizona Attorney General Mark Brnovich signed on to the lawsuit — and that verbiage. And in a separate prepared statement, he said the president “has no business setting locker room and restroom policies for our schools.”

State schools chief Diane Douglas, whose agency Brnovich technically represents, told reporters late Wednesday she believes all students, including transgender, have a right to be safe. But she said that’s none of Washington’s concern.

“It is best resolved at the local level where school board members, district administrators and schoolwide administrators know exactly what their individual circumstances are,” she said. Douglas said this federal overreach could mean the loss of up to $1 billion in federal aid to Arizona schools.

But Douglas repeatedly sidestepped questions about whether individual schools should similarly be allowed to make up their own policies on other forms of discrimination without federal intervention.

“That’s not an issue for me to address,” she said.

The issue arises under Title IX, a section of federal civil rights law which makes it illegal to discriminate against individuals on the basis of sex in any education programs or activities receiving federal assistance.

In a joint memo earlier this month, the two federal agencies said the law requires schools to deal with transgender students consistent with their gender identity. They said it is irrelevant what sex is listed on a student’s records.

But assistant Attorney General Dominic Draye told Capitol Media Services the legal issue has nothing to do with discrimination. He said Title IX doesn’t give the administration the power to tell schools how to deal with transgender students but only deals with sex discrimination.

“Our position is that term is unambiguous,” he said. “Discrimination based on sex refers to biological sexes.”

What that means, Draye said, is a school cannot provide a sport for men and refuse to do the same for women, or even better locker rooms for one sex than the other.

“Gender identity, which may as a policy matter be a perfectly desirable thing to include in Title IX, is not there presently,” he said.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

But Tucson attorney Abby Jensen, a member of the board of Equality Arizona, said the U.S. Supreme Court has ruled that laws against sex discrimination also cover those whose sex and gender stereotypes may not match their biological sex.

Draye disagreed, saying the law means what it says.

He cited the federal Violence Against Women Act that has specific language outlawing discrimination based on sexual identity. Draye said that shows Congress knows how to extend such protections when it wants.

But Jensen said courts have said that oversight is not definitive.

The attorneys general also claim the Obama administration’s action has other flaws, with no requirement for a medical diagnosis or treatment before a student selects his or her “gender identity.” Nor, they argue, is there any time frame.

“In other words, a student can choose one ‘gender identity’ on one particular day or hour, and then another on the next,” the lawsuit states.

“And students of any age may establish a ‘gender identity’ different from their biological sex simply by notifying the school administration,” it continues. “The involvement of a parent or guardian is not necessary.”

Jennifer Pizer, an attorney with Lambda Legal, said that shows “a profound misunderstanding or simply deliberately closed eyes” to the issue.

“Gender identity, like sexual orientation, is a core aspect to an individual’s identity,” she said. “It’s not something people turn ‘off’ one day and ‘on’ the next.”

And Pizer said no one has been able to cite any instances where students have made such day-by-day claims.

Aside from saying the administration acted without legal authority, the challenging states also say the directive is “coercive” in threatening to withhold federal funds. It says direct federal dollars into public schools averages more than $55.8 billion annually, a figure they said comes out to $1,128 per student.

Pizer, however, said what’s lost in both arguments is that neither federal agency is making new rules but simply providing “guidance” to schools of how it interprets existing laws. She said that’s within the power of the agencies.

Gov. Doug Ducey is not part of the lawsuit, with Brnovich representing solely the state Department of Education. But press aide Daniel Scarpinato said his boss supports the action.