A transgender woman holds a transgender pride flag at a rally for LGBTQ rights in New York. Yana Paskova/Getty Images
Georgia Attorney General Chris Carr is joining counterparts in 19 other states to sue the Biden administration over federal anti-discrimination protections for transgender students.
“The administration is willfully circumventing the authority of Congress and ignoring the rule of law with this regulatory overreach,” Carr said in a statement. “There is an established process to change anti-discrimination law and federal agencies lack the authority to change the law in this way.”
In a complaint filed Monday in federal court in Tennessee, the states accuse the United States Department of Education, the Equal Employment Opportunity Commission and the Department of Justice of overreaching in extending protection to transgender students under Title IX, a federal civil rights law prohibiting schools that receive federal funding from discrimination based on sex.
The agencies issued guidance exceeding what regulatory requirements and the Constitution permit, the states’ top lawyers allege.
“The guidance purports to resolve highly controversial and localized issues such as whether schools must allow biological males to compete on girls’ sports teams, whether employers and schools may maintain sex-separated showers and locker rooms, and whether individuals may be compelled to use another person’s preferred pronouns,” the complaint reads. “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.”
But Carr’s case is not so clear-cut, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
The agencies’ guidance was based on what the Supreme Court decided in a case out of Clayton County last summer, Kreis said. The high court ruled in favor of a county employee who was fired after he joined a gay softball recreational league.
“There’s nothing radically new that came out of these federal agencies that hasn’t been thoroughly discussed and debated and vetted before,” he said. “And there’s really nothing radical or unlawful about federal agencies taking a Supreme Court precedent into account and applying it in similar contexts. So I think what this really is is an attempt to take advantage of perhaps a favorable District Court and Circuit Court of Appeals in Tennessee by the states that have signed on to this. It is not a serious lawsuit, as far as I’m concerned, in terms of the legal merits.”
Paul Castillo agrees. He is counsel and students’ rights strategist in the south central regional office of Lambda Legal, a legal and civil rights group that supports LGBTQ people.
“Agencies within the federal government regularly issue guidance about their interpretation of the laws they are charged with enforcing,” he said. “It is well within their authority to provide information and offer technical assistance about the already existing law as it applies to transgender people in the workplace and in schools. Courts across the United States have vindicated the civil rights of transgender people and the outcome should be no different here.”
The subject of transgender athletes in public schools has become a hot-button cultural issue this year, and legislatures in states including Alabama, Arkansas, Mississippi and Tennessee have passed laws restricting such athletes from participating.
Republican lawmakers from both the Georgia House and Senate introduced legislation aiming to bar transgender girls from playing on girls’ sports teams in Georgia public schools this year. The bills elicited passionate testimony in committee hearings, but neither one gained traction in this year’s session.
The Georgia High School Association, which oversees high school sports, honors gender determinations made by member schools, according to its bylaws.
Proponents of the bills said they are a way to protect female athletes, who they say are at risk of losing their place on a team or missing out on college scholarships.
Opponents call such measures thinly veiled bigotry against transgender children.
“This is yet another attempt to erase transgender people from the public sphere,” Castillo said. “Transgender students have been attacked in many state legislative houses across the country and now these same actors endeavor to waste payer money in a lawsuit aimed at denying such students full participation in equal educational opportunities. This lawsuit has nothing to do with addressing any real evidence-based problems that school officials are having to deal with.
“It is a nonexistent problem being used for political purposes,” he added. “They can’t seem to win on any real issues, so they are picking on marginalized children.”
Kreis said transgender students should know they are still protected by law.
“We all well know that anti-trans policies in schools are harmful to children, it harms their general well-being, which is why it’s a violation of Title IX,” he said. “It has real world consequences, including dire situations where suicidal ideation becomes a real issue for these kids. Why on earth anyone with the power and the authority of the attorney general’s office would want to use their time and resources to pursue policies that harm children in that way is beyond me, especially, again, after the Supreme Court made very clear that discrimination on the basis of sex is inclusive of discrimination against people on the basis of gender identity or being transgender.”
Read the full complaint below:U.S. Dep't of Education - Complaint
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