11 states sue U.S. government over Obama's transgender directive

AUSTIN – The transgender bathroom battle is about to take another dramatic turn.

Texas and 10 other states are suing the Obama administration over a new directive instructing public schools to allow transgender students to use bathrooms and locker rooms that correspond to their gender, rather than birth, identity.

The lawsuit, announced Wednesday in Austin by Texas Attorney General Kenneth Paxton, also includes Oklahoma, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Arizona, Louisiana, Utah and Georgia. It accuses President Obama's administration of “running roughshod over commonsense policies” that protect children, and asks a judge to declare the directive unlawful.

Conservative states had vowed defiance since the Justice Department handed down the guidance earlier this month. At the time, U.S. Attorney General Loretta Lynch said “there is no room in our schools for discrimination.”

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The Department of Education ordered schools to create policies to grant preferred bathroom access to transgender students or risk losing billions in federal funding. The directive stressed that transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits gender discrimination at federally funded institutions.

According to The Associated Press, Lt. Gov. Dan Patrick has previously said Texas is willing to forfeit $10 billion in federal education dollars rather than comply.

Texas Gov. Greg Abbott confirmed the lawsuit Wednesday morning at a book signing hours before Paxton formally announced the challenge.

“His lawsuit is challenging the way that the Obama administration is trampling the United States Constitution,” Abbott told reporters.

The issue of transgender usage of bathrooms exploded on the national scene in the wake of House Bill 2 in North Carolina, which became law on March 23. It bans transgender people from using bathrooms that don't match the gender on their birth certificate. North Carolina and the Justice Department sued each other over the law, opening the door for the directive.

Supporters of transgender bathroom bills say such measures are needed to protect women and children from sexual predators, while the Justice Department and others argue the threat is practically nonexistent and the law discriminatory.

Several key Republican lawmakers in Texas, including Abbott, Paxton and Patrick, have been outspoken in their opposition to the directive and to the issue of transgender-identity bathroom use.

Calling the Obama administration directive “outside the bounds of the constitution,” Paxton said at the news conference that the state was taking action to protect the tiny Harrold school district near the Oklahoma border, which has roughly 100 students and a new policy requiring the use of bathrooms based on birth gender, The Texas Tribune reported.

“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy (that) puts the safety of their students first,” said Paxton, who was joined by Harrold superintendent David Thweatt. “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.”

Thweatt said his schools have no transgender students to his knowledge but defended the district taking on the federal government.

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“It’s not moot because it was thrusted upon us by the federal government,” Thweatt said, “or we were going to risk losing our federal funding.

Pressed about whether he knew of any instances in which a child’s safety had been threatened because of transgender bathroom rights, Paxton said “there’s not a lot of research.” According to the Associated Press, he said he his office has heard from concerned parents, but didn’t say how many, and said he did not meet with any parents of transgender students before drafting the lawsuit.

Other states had joined the suit, Paxton said, because the issue was of national importance, Texas Tribune reported.

“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.

But Shannon Minter, legal director for the National Center for Lesbian Rights, says the states' lawsuit is based on "a complete misconception" of the directive. It's fairly routine for the Justice and Education departments to issue guidance related to Title IX, she said, so "the lawsuit’s portrayal of such a letter as extraordinary or overreaching has no basis."

Minter also said the lawsuit implies that public schools would no longer maintain separate restrooms and facilities based on gender.  "The guidance presupposes that schools and employers will continue to have separate facilities based on gender and merely addresses how to integrate transgender people into that framework in a non-discriminatory way," she said.

"The only thing extraordinary here is the unfortunate resistance on the part of some states to treating transgender people with basic dignity and respect," Minter said.

Contributing: Paul Weber, The Associated Press; The Texas Tribune, USA TODAY