A lawsuit brought by Texas and other states against the Obama administration’s policy on bathroom access may move the United States closer to a resolution on transgender rights by putting the issue on a trajectory for the Supreme Court.
Conservative officials from 11 states sued the federal government on Wednesday to overturn a directive that transgender students be allowed to use the bathroom matching their gender identity instead of being forced to use one corresponding to gender assigned at birth. The governor of a 12th state, Mississippi, said he planned to join the lawsuit.
The country’s high court has never ruled on a main question of the lawsuit: Do federal legal protections against sex discrimination apply to transgender people?
The plaintiffs picked a path that could get them two quick wins in lower courts. The lawsuit is expected to be heard first by an appointee of Republican President George W. Bush and if there is an appeal by a conservative federal appeals court covering Texas.
If that appeals court ruled against the Obama administration, the Supreme Court may feel compelled to take up the matter because of a likely conflict with a ruling last month from a federal appeals court in Virginia. That ruling revived a transgender teen’s lawsuit against his school district.
The Supreme Court is more likely to agree to hear a case when there is a split among different federal appeals courts, and such a conflict does not yet exist on transgender rights.
The plaintiffs have accused the administration of President Barack Obama of overreaching its authority and said the U.S. Congress, or individual states, should set policy.
At least two provisions of federal law ban discrimination on the basis of sex: Title VII of the Civil Rights Act of 1964, which covers employment, and Title IX of the Education Amendments of 1972.
When lawmakers passed the education amendments, they did not consider that the law could one day be applied to gender identity, said Jeremy Tedesco, senior counsel at the Alliance Defending Freedom, a conservative Christian legal group.
“The (administration’s) lawless interpretation ignores the will of Congress in enacting Title IX,” Tedesco said. “It’s a clear case of federal overreach.”
The Obama administration has argued that the education amendments encompass discrimination based on gender identity, including transgender status. It said in a letter to school districts this month that their access to federal money depended on their compliance.
The states that sued have two paths to victory, Tedesco said: a ruling that the Obama administration did not follow proper procedure for making new regulations, which would leave the larger issue unsettled, or that its interpretation of Title IX is inconsistent with the law.
Without clear guidance from the courts, the question of transgender rights would remain open to interpretation by federal agencies, meaning a future president could take the opposite view of Obama.
The Republican-controlled Congress has the power to end the dispute immediately, either in favor of transgender rights or against them, but it has shown few signs of acting, especially with a Democrat, Obama, in the White House.
A series of decisions suggests courts are coming around to a more expansive definition of sex discrimination, said Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders.
Federal agencies clearly have the authority to interpret civil rights law when its application is unclear, she said.
“To characterize (the administration’s position) as extraordinary or overreaching shows a complete misunderstanding of what these agencies do,” Levi said.
The states countered in their lawsuit that the federal agencies went beyond mere interpretation of civil rights law and in effect created new regulations that should have gone through a notice-and-comment procedure.
A court could also find that the states’ lawsuit was premature because the Obama administration has not yet moved to cut off funding to any state or school district, said Arthur Leonard, a professor at New York Law School and an expert on LGBT law.
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