Southeast Texas Record

Thursday, April 9, 2020

Texas attorney general leads 13-state challenge of federal unisex access rule

By Andrew Burger | Jul 12, 2016

General court 02

AUSTIN – The Texas attorney general is leading a 13-state coalition in a bid to resist an Obama administration directive that would effectively require all public schools and businesses to open up all intimate areas – rest rooms, locker rooms, showers, etc. – to both sexes.

The Texas Attorney General's office filed a motion for a nationwide preliminary injunction that would stop the U.S. Department of Education, Department of Justice and other federal agencies from implementing the Obama administration's directive, which rewrites use of the term ¨sex¨ in federal laws to include ¨gender identity,¨ the attorney general explains in a press release. 

“The nation’s schools, and every place of employment, are now in the crosshairs of the Obama administration, which maintains it will punish those who do not comply with its orders,” Texas Attorney General Ken Paxton said in a statement.

The state attorney generals of Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin have joined Texas in filing the motion for a preliminary injunction.

Failure to comply with the federal ¨gender identity¨ directive carries penalties. Schools that choose not to comply risk losing Civil Rights Act of 1964 Title IX funding, while employers would face legal liability under Title VII of the Education Amendments Act of 1972, the plaintiffs highlight in their motion. 

“Schools are facing the potential loss of funding for simply exercising the authority to implement the policies that best protect their students," Paxton stated. "Every employer is now being threatened for not bowing to anyone that identifies as the opposite sex."

First introduced in 1963 – one year prior to enactment of the Civil Right Act – statutory use of the term ¨gender identity¨ distinguished it from ¨sex¨ by asserting that gender has ¨psychological or cultural rather than biological connotations,¨ plaintiffs explain in their motion for a preliminary injunction.

Congress reaffirmed this distinction in the 1970s while debating the inclusion of ¨gender identity¨ as a statutory term in federal legislation. The one instance they agreed to do so was in order to prevent discrimination against pregnant and post-partum women in the workplace as part of the Pregnancy Discrimination Act of 1978.

In addition, legislators included both ¨sex¨ and ¨gender identity¨ in efforts to prevent discrimination when they reauthorized the Violence Against Women Act (VAWA) in 2013. The term was also included in hate crimes legislation President Barack Obama signed into law in 2010 (18 USC Section 249).

Congress has explicitly added ¨gender identity¨ to other civil rights statutes, but not Title VII or Title IX, the 13 attorney generals point out. Nonetheless, defendants since 2010 have acted as if the term ¨gender identity¨ had been added to Title VII and IX means ¨gender identity,¨ plaintiffs argue. For example:

• In a 2010 Dear Colleague Letter, the Department of Education’s (“DOE”) Office for Civil Rights (“OCR”) asserted that “Title IX does protect all students, including . . . transgender (LGBT) students, from sex discrimination.”

• In April 2014, OCR stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

• In December 2014, Attorney General Eric Holder issued a memo concluding that Title VII’s reference to “sex” “encompasses discrimination based on gender identity, including transgender status.”

• In June 2015, the Occupational Safety and Health Administration (“OSHA”) declared that “all employees should be permitted to use the facilities that correspond with their gender identity,” different from the sex they were assigned at birth.”

The Obama administration contends that statutory use of the term ¨sex¨ in laws is equivalent to ¨gender identity,¨ which, in turn, is defined as ¨an individual's internal sense of gender.¨ Hence, in essence anyone can choose their gender. Furthermore, the defendants contend that women, men, boys and girls should have access to intimate facilities that match their gender identity as opposed to their biological sex. 

The presidential directive and resulting actions to implement it is unlawful and carries well beyond the bounds implicit and intended in Title VII and Title IX, as well as other federal laws, according to the 13 state attorney generals.  

They point out that the statutory use of the terms ¨sex¨ and ¨gender identity¨ are distinct and that ¨gender identity¨ does not appear in either Title VII or Title IX or in any federal legislation for that matter. In their motion they note that the Supreme Court in 1994 ruled that educational institutions must ¨afford members of each sex privacy from the other sex.¨

Furthermore, inn support of their motion the attorney generals allege that the Obama administration´s directive and efforts by the Dept. of Education, Justice and other and federal agencies to implement it ¨skirted the notice and comment process – a necessity for legislative rules.

In addition, they allege the new rules are incompatible with Title VII and Title IX; and violate the clear notice and anti-coercion requirements controlling the federal government's power to attach strings to spending programs.

Furthermore, they contend that compliance ¨will deny the public interest in the continued operation of otherwise valid policies protecting the safety of students in public educational institutions, and workers in myriad places of employment.¨

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Texas Office of the Attorney General