A coalition of 11 states led by Texas is serving as the first line of defense against President Obama's mandate compelling schools nationwide to permit toilet and locker room access on the basis of gender identity, not biological sex.
The states on Wednesday filed a lawsuit against the administration, challenging the directive as unconstitutional executive overreach and a misinterpretation of federal antidiscrimination law.
The lawsuit says the privacy and safety of children are recklessly put at risk through the mandate, arguing that the decision of how to accommodate transgender students is a matter properly left to the states.
"Defendants have conspired to turn workplace and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights," the lawsuit said.
Texas Attorney General Ken Paxton, who filed the lawsuit in the U.S. District Court for the Northern District of Texas, said legislating through "executive fiat" is par for the course for the Obama administration, accusing the president of "bullying" schools into adopting his ideology.
Mr. Paxton said Title IX, a federal law barring "sex" discrimination in education, has no bearing on whether transgender students can use the restrooms and locker rooms consistent with their gender identity.
"I think the definition that they're adding to Title IX is a new definition that Congress has not put in there," Mr. Paxton told The Washington Times. "He doesn't have the authority to change law. His job under Article II is to faithfully executive the law, and this isn't faithfully executing the law; this is making up a law.
"He's basically acting outside of his constitutional authority, and he's trying to bully school districts into changing a policy that he literally has no authority to change," he said.
Texas is the lead plaintiff in the case and is joined by the state governments of Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah and Georgia, as well as the Arizona Department of Education and the office of the governor of Maine.
Joseph Backholm, director of the Family Policy Institute of Washington, said he likes the states' chances against the federal government, saying the legislative intent of Title IX concerned only "sex" discrimination.
"Title IX was written by Congress, and this is what Congress said, and this is what they meant," Mr. Backholm said. "Despite the administration's desire to have Title IX say something different, there's no evidence that that's what Congress intended. And since they are in conflict, you have to go with the body that actually created Title IX, which is Congress. You have to defer to the legislative intent rather than the executive restructuring.
"I have a high degree of confidence that once this question gets into court, it's going to be struck down," he said of Mr. Obama's order.
Tony Perkins, president of the Family Research Council, commended the states for standing up to Mr. Obama, saying the president has "ignored the boundaries of his constitutional power."
"If the White House can dictate the policies for every school locker room, shower, and bathroom in America, what could possibly be beyond its reach?" Mr. Perkins said in a statement.
Gay rights groups called the lawsuit "shameful," pointing to Mr. Paxton's opposition to the Supreme Court ruling in Obergefell v. Hodges, which created a constitutional right to same-sex marriage.
"Ken Paxton has already disgraced himself and his office by undermining the rule of law and shamefully encouraging state officials to ignore the U.S. Supreme Court's marriage equality decision last June," Human Rights Campaign Communications Director Jay Brown said in a statement. "Now, he's gone so far as to attack transgender youth, whom he has a responsibility to protect as Attorney General."
Mr. Obama issued the federal guidance this month amid an escalating legal battle in North Carolina over transgender bathroom access. The directive is legally nonbinding, but puts federal education dollars at risk for schools that do not comply with the order.
The guidance followed dueling lawsuits filed by the U.S. Department of Justice and the state of North Carolina against each other regarding a North Carolina law regulating public facilities on the basis of biological sex. The Justice Department said the law violates federal civil rights law, and Attorney General Loretta Lynch compared it to Jim Crow race codes adopted after the Civil War.
The Department of Education Office of Civil Rights signaled where the Obama administration was headed in 2014, when it issued a guidance interpreting the law to bar discrimination on the basis of "gender identity." The law never mentions the phrase, and it was passed decades prior to the current ascendance of the transgender movement and even the term "LGBT."
Several federal courts have recently weighed in on the meaning of Title IX, ruling both for and against the federal government's interpretation.
The highest court to take up the case, the 4th U.S. Circuit Court of Appeals, last month sided with a transgender teenager from Virginia, who said a local school board had violated Title IX by creating single-stall, unisex restrooms for transgender students. The school board has requested that the whole court hear an appeal of its three-judge panel's ruling.