Arizona, Texas take part in bathroom lawsuit

Mark Brnovich

Mark Brnovich

The lawsuit announced Wednesday includes Oklahoma, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Arizona, Louisiana, Utah and Georgia.

PHOENIX - Arizona joined Texas Wednesday to challenge a directive by the Obama administration that schools must let transgender students use restrooms that match their self-proclaimed sexual identity.

The lawsuit, filed in federal court in Texas, contends Congress never gave the administration the power to enact such sweeping rules when it passed laws prohibiting sex discrimination by schools receiving federal dollars. In fact, the attorneys cite comments by congressmen when the measure was approved in 1972 saying it was never the intent to sexually integrate same-sex facilities.

Texas Attorney General Ken Paxton, who is taking the lead, argues that the issue goes beyond a pure question of law.

He said federal agencies "have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common-sense policies protecting children and basic privacy rights.'

In a prepared statement, Arizona Attorney General Mark Brnovich said the president "has no business setting locker room and restroom policies for our schools.'

"Deciding how to protect our children and preserve their privacy, while balancing these complicated issues, is best done locally and not by some one-size-fits-all decree from Washington,' he said.

Brnovich has the backing of state schools chief Diane Douglas, who had previously blasted the administration's announcement.

"When Arizona students attend school, they deserve a safe environment that is free from bullying and discrimination, regardless of their gender identity,' she said in her own statement. "I know that our districts and schools have policies in place to ensure that is the case. The fact that the federal government has yet again decided that it knows what is best for every one of our local communities is insulting and, quite frankly, intolerable.'

The issue arises under Title IX, a section of federal law which makes it illegal to discriminate against individuals on the basis of sex in any education programs or activities receiving federal assistance.

In a joint memo earlier this month, the federal departments of Justice and Education said the law requires educators to deal with transgender students consistent with their gender identity. More to the point, they said it is irrelevant what sex is listed on a student's records.

"No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,' Education Secretary John King Jr. said in a statement when the directive was released.

'Local level'

But the lawsuit contends the directive is seriously flawed, with no requirement for a medical diagnosis or treatment before a student selects his or her "gender identity.' Nor, the attorneys general argue, is there any time frame.

"In other words, a student can choose one 'gender identity' on one particular day or hour, and then another on the next,' the lawsuit states. "And students of any age may establish a 'gender identity' different from their biological sex simply by notifying the school administration. The involvement of a parent or guardian is not necessary.'

Aside from saying the administration acted without legal authority, the challengeing states also say the directive is "coercive' in threatening to withhold federal funds. It says direct federal dollars into public schools average more than $55.8 billion annually, a figure they said comes out to $1,128 per student.

Gov. Doug Ducey previously blasted the Obama administration for interjecting itself into what he sees as a strictly local matter.

"This is not an issue we're having in Arizona,' he said in a prepared statement.

"This is an issue we're handling on the local level. We don't need Washington, D.C., or the federal government telling us how to run our schools.'

But U.S. Attorney General Loretta Lynch has defended the move.

"This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies,' she said in her own statement.

Previously in Arizona

State lawmakers attempted to address the issue on a more global basis three years ago.

Then-Rep. John Kavanagh, R-Fountain Hills, introduced legislation to make it a crime to enter a public restroom designated for one gender or the other if someone is "not legally classified' on a birth certificate as a member of that sex. His measure also would have applied to showers, baths, dressing rooms or locker rooms.

That move came a month after the Phoenix City Council voted to extend its anti-discrimination laws to those who are gay, lesbian, bisexual and transgender. Foes quickly dubbed it the "bathroom bill,' saying the provisions about public accommodations could result in businesses being prosecuted for refusing to let transgender men use the women's room.

Kavanagh said state action was needed. Otherwise, he said, any man who simply "thinks of himself' as a woman could be free to go into a women's locker room and disrobe.

"That's unacceptable behavior,' he said.

Officials in Tucson, which has had a similar ordinance since 1999, said no one had ever raised an issue or filed a complaint about who was using which bathroom.

Kavanagh eventually dropped the proposal.