Texas Leading Suit To Stop Obama Transgender School Policy

Obama Transgender School Policy

Obama Transgender School Policy

Editor’s note: This story was republished with full permission and has been updated throughout.

Texas, joined by 10 other states, filed a lawsuit Wednesday to stop a federal directive instructing school districts to let transgender students use the bathroom that corresponds with their gender identity, Attorney General Ken Paxton announced Wednesday.

Calling the Obama administration guidelines “outside the bounds of the constitution,” the McKinney Republican said that the state was taking action to protect a school district near the Oklahoma border that had passed a policy earlier this week requiring students to use bathrooms according to the gender cited on their birth certificates.

“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy puts the safety of their students first,” said Paxton. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of Obama administration which has maintained it will punish anyone who doesn’t comply with their orders.”

The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Paxton said they had joined because the issue was of national importance.

“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” he said.

The Obama administration guidelines stated transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits discrimination on the basis of gender at education institutions that receive federal funding. It does not have the force of law, though school districts could risk losing federal money if they do not comply.

Harrold superintendent David Thweatt, who joined Paxton at the Austin news conference, said his school board had passed the policy out of concern for the “safety, security, and dignity of the children.” None of the 100 students currently enrolled there identify as transgender, he said.

Concerns about the safety of allowing transgender people to access the bathrooms that correspond to their gender identities draw deep skepticism from LGBT advocates. With virtually no evidence of attacks coming from such policies in any states, they say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them.

When asked Wednesday, neither Paxton nor Thweatt could point to instances where allowing transgender students access to the bathrooms that correspond to their gender identities had threatened anyone’s safety.

Since the Obama administration issued the new guidelines earlier this month, they have generated widespread outrage among Texas Republicans, fueling full-throated attacks from many party leaders including Lt. Gov. Dan Patrick and U.S. Sen. Ted Cruz.

Read MoreTexas Republicans Rail Against Obama Transgender Directive

Paxton has previously sought legal clarification on the divisive issue. Earlier this month he joined with lawyers from Oklahoma and West Virginia to write a letter to the U.S. Justice and Education departments asking whether states would lose federal funding if their school districts did not comply with the directive, which does not have the force of law.

With the lawsuit, Paxton sets the stage for Texas to become the next battleground in the explosive national debate over the right of transgender people to decide which bathroom they use. It also shifts the spotlight from Patrick, who has so far been the state’s most vocal elected official on the issue.

Patrick — who generated headlines earlier this month when he called for the resignation of a Fort Worth superintendent over that district’s policies that instructed educators to acknowledge students’ chosen gender identities — has urged superintendents around the state to resist pressure from the federal government to follow the Obama administration guidelines.

At a Round Rock stop on his book tour Wednesday morning, Gov. Greg Abbott said Paxton was “challenging the way that the Obama administration is trampling the United States Constitution.”

“The president has no authority to enact laws whatsoever. Several times Congress has taken up the issue of whether to expand the Civil Rights Act and Title IX and whether or not to include transgender. Both times or multiple times, Congress has decided against that,” said Abbott, who first announced the lawsuit in a tweet Wednesday.

When asked whether he had any input on the attorney general’s decision to challenge the directive, Abbott said the lawsuit was Paxton’s “determination.”

He also defended the cost of suing the federal government over the issue.

“There is no price that can be put on a president violating the Constitution,” he said. “This country abandons its fundamental principle when we have a president who says he is above the law. Barack Obama has repeatedly said he is above the law. Texas is going to put a stop to that.”

The battle over the issue burst into national view in March after the North Carolina General Assembly passed House Bill 2, which prohibited transgender people from using bathrooms that do not match the gender on their birth certificate. The controversial law, which has prompted some businesses to reconsider their investments in the state, is now the subject of a federal civil rights lawsuit.

A statewide bathroom law may be in the cards for Texas when lawmakers come back to Austin for the 2017 legislative session in January. Patrick — who as lieutenant governor wields considerable influence over the legislative agenda — said last month that such legislation would be a priority.

Patrick Svitek contributed reporting to this story.

This article originally appeared in The Texas Tribune at http://www.texastribune.org/2016/05/25/texas-will-sue-stop-obama-transgender-directive/.


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Kelli, Busey is managing editor at Planet Transgender


  1. I know the wording is from the original article, but the repeated statement that the directive “does not have the force of law” is seriously disheartening for a couple of reasons. First off, it seems to be repeated in order to justify or at least excuse the state backlash against the directive, while ignoring the question of how something that doesn’t have any force could actually become an “overreach”, a clearly contradictory position.

    Second, and most important, the “Dear Colleague” letter issued by the Office of Civil Rights of the Dept. of Education is classified as “serious guidance” to inform institutions of their obligations under existing law. Let me repeat those last two words in all-caps to make a point: EXISTING LAW. There is a clear body of federal regulation and resolution, policy, and case law – all of which have “force of law” – that makes it patently obvious that the sex discrimination portions of Title IX have been held for some time to be applicable to gender identity. The “no force of law” claim is disingenuous, because it’s intended to make the reader believe that the guidance letter is an attempt to add a new obligation, when it explicitly is not. It’s further dishonest because it ignores that part of the current issue is that the Department of Justice is pursuing legal recourse against North Carolina for violations of Title IX sex discrimination prohibitions, which is only possible because of the existing force of law.

    As I said, I know it’s not your fault that the words exist here, but as they’ve become just as much a rallying cry for the ignorant and bigoted as “what about the children” and “trans people are just *confused* and need *therapy*”, it’s viscerally disturbing to see it promulgated by a media outlet such as the Texas Tribune.


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