20 states including IN sue over Biden admin school, work LGBT protections

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Attorneys general from 20 states including Indiana sued President Joe Biden’s administration Monday seeking to halt directives that extend federal sex discrimination protections to LGBTQ people, ranging from transgender girls participating in school sports to the use of school and workplace bathrooms that align with a person’s gender identity.

Tennessee Attorney General Herbert Slatery filed the lawsuit in U.S. District Court in Knoxville, Tennessee, arguing that legal interpretations by the U.S. Department of Education and the Equal Employment Opportunity Commission are based on a faulty view of U.S. Supreme Court caselaw.

The Supreme Court ruled in June 2020 that a landmark civil rights law, under a provision called Title VII, protects gay, lesbian and transgender people from discrimination in employment.

This June, the Department of Education said discrimination based on a student’s sexual orientation or gender identity will be treated as a violation of Title IX, the 1972 federal law that protects against sex discrimination in education. A legal analysis by the department concluded there is “no persuasive or well-founded basis” to treat education differently than employment.

Also in June, the Equal Employment Opportunity Commission released guidance about what could constitute discrimination against LGBTQ people and advised the public about how to file a complaint.

With its guidance, the Biden administration in part took a stand against laws and proposals in a growing number of states that aim to forbid transgender girls from participating on female sports teams. The state attorneys general contend that the authority over such policies “properly belongs to Congress, the States, and the people.”

“The guidance purports to resolve highly controversial and localized issues such as whether employers and schools may maintain sex-separated showers and locker rooms, whether schools must allow biological males to compete on female athletic teams, and whether individuals may be compelled to use another person’s preferred pronouns,” the lawsuit states. “But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”

Joining Tennessee in the lawsuit are Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.

“Hoosier parents rightly expect their children’s schools to follow commonsense rules that reflect their values, such as maintaining separate bathrooms for boys and girls,” Indiana Attorney General Todd Rokita said in a Monday press release. “Using the weight and perceived threat of federal agencies, the Biden administration has sought to circumvent the law and impose a radical leftist ideology on American families nationwide. We can’t let that happen.”

The lawsuit asks a judge for a number of declarations about Title IX in schools and Title VII in the workplace: that they don’t prohibit schools and employers from having showers, locker rooms, bathrooms and other living facilities separated by “biological sex”; that they do not require employers, school employees or students to use a transgender person’s preferred pronouns; that they do not prohibit having school sports teams separated by “biological sex”; and that they do not prohibit workplace dress codes based on “biological sex.”

“Forcing girls to compete against biological males for spots on women’s sports teams robs them of opportunities to participate in athletics,” Rokita, a Republican, continued. “Not only that, but forcing girls to play against biological males endangers their very health and safety. What could be more disrespectful toward women than these kinds of policies?”

The education policy carries the possibility of federal sanctions against schools and colleges that fail to protect gay and transgender students.

The Department of Justice on Monday did not immediately respond to a request for comment on the lawsuit.

The education directive reversed President Donald Trump-era policies that removed civil rights protections for transgender students. In 2017, the Trump administration lifted President Barack Obama-era guidance allowing transgender students to use bathrooms and locker rooms that match their gender identities.

At the time, then-Education Secretary Betsy DeVos said the issue was “best solved at the state and local level” and the earlier guidance led to a spike in lawsuits seeking clarification.

The new action does not reinstate the Obama-era policy but instead clarifies that the Education Department’s Office for Civil Rights will investigate complaints of discrimination involving gay or transgender students. If the department finds evidence of discrimination based on sexual orientation or gender identity, it will pursue a resolution to “address the specific compliance concerns or violations.”

The federal agencies noted that the workplace and education guidance documents do not carry the force of law. The state attorneys general argued they are at risk of the federal government enforcing the guidance, threatening their states’ sovereign authority, causing significant liability and putting their federal education funding at risk.

“This case is about two federal agencies changing the law, which is Congress’ exclusive prerogative,” Slatery of Tennessee said in a press release. “The agencies simply do not have that authority. But that has not stopped them from trying. Even their attempts, as unlawful as they are, did not follow the Administrative Procedures Act.”

In June, the Department of Justice filed statements of interest in lawsuits that seek to overturn new laws in two states. In West Virginia, a law prohibits transgender athletes from competing in female sports. Arkansas became the first state to ban gender confirming treatments or surgery for transgender youth.

The case is Tennessee, et al. v. United States Department of Education, et al., 3:21-cv-00308.

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