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States Move Surprisingly Quickly in Suing Over Obama Transgender Policy

The ACLU labeled the lawsuit 'a political stunt' — and some legal experts believe it was filed too soon.
Image: gender neutral bathroom
Destin Cramer and Noah Rice place a new sticker on the door at the ceremonial opening of a gender neutral bathroom at Nathan Hale high school, May 17 in Seattle.Elaine Thompson / AP

Less than two weeks after the Obama administration told the nation's public schools that they must honor the choices of transgender students, 11 states filed a lawsuit in federal court Wednesday to block the directive.

The ACLU labeled the lawsuit "a political stunt," and some legal experts said it was filed too soon, though they add the issue is soon to be properly heard before the courts.

Led by Texas, the states said the federal government is turning schools and workplaces "into laboratories for a massive social experiment" and "running roughshod over commonsense policies protecting children and basic privacy rights."

Eight of the other states on the lawsuit are led by Republican governors — Alabama, Arizona, Georgia, Maine, Oklahoma, Tennessee, Wisconsin, and Utah. The other two have Democratic governors — Louisiana and West Virginia.

They're asking a federal judge to invalidate a Department of Education notice to schools that they must honor a student's declared gender identity. And the states challenge a memo from the Equal Employment Opportunity Commission advising employers that denying employees access to a restroom corresponding to their gender identity amounts to illegal sex discrimination.

"Schools are facing the potential loss of school funding for simply following common-sense policies that protect their students," said Texas Attorney General Ken Paxton.

The lawsuit says that while civil rights laws governing schools and employers outlaw sex discrimination, the laws refer only "to one's biological sex, as male or female, and not the radical re-authoring of the term not being foisted upon Americans by the collective efforts" of the federal government.

But the ACLU's James Esseks called the lawsuit an attack on transgender people.

"The Supreme Court has made clear that one cannot sue an agency just because you disagree with the agency's guidance," he said. "If these attorneys general disagree with the agency's interpretation of what the federal ban on sex discrimination means, they can make that argument to the court when it arises in a real case."

For now, Esseks added, "there have been no disruptions, increases in public safety incidents, or invasions of privacy related to protections for transgender people." And he said federal courts and agencies have long recognized that the ban on sex discrimination includes protections for transgender people.

Some legal experts agree that the states went to court too soon.

But they say there may soon come a time when the states have an example of a concrete action they have to take or a claim that they are in imminent danger of losing federal funds, which would constitute a proper lawsuit.