Wisconsin Joins Other States in Suit to Overturn Obama’s Transgender Guidance

Wisconsin joins Texas and nine other states challenging the Obama Administration’s new Title IX transgender guidance. Several local school districts are also participating.

Under the guidance, schools must allow transgender students access to bathrooms and locker rooms consistent with their self-professed gender identity.

In his May 25 press release, Wisconsin Attorney General Brad Schimel states that the new guidance conflicts with Wisconsin’s law that already prohibits discrimination based on “sex” in the educational setting. In a broader sense, he argues that “Wisconsin sovereignty and independence have once again been undermined by the federal government.”

At issue is a May 13 directive from the federal Department of Education and the Justice Department. The oft used and never subtle hammer, of course, is that compliance with the guidance is “a condition of receiving Federal funds.”

With respect to restrooms and locker rooms, the guidance states that “the school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.” Gender identity, in turn, refers to “an individual’s internal sense of gender.” For compliance purposes, the student’s gender identity is established once a student or the student’s parent or guardian notifies school administration that “the student will assert a gender identity that differs from previous representations or records.”

In their complaint for declaratory and injunctive relief, the states argue the guidance is a “rule” as defined by the federal Administrative Procedures Act (APA). As such, the federal agencies must engage in notice and comment rulemaking and otherwise promulgate the new rules consistent with the APA.

In addition, the states argue that the agencies lack congressional authority. They also assert that the guidance violates separation of powers principles “by purporting to expand federal court jurisdiction to cover whether persons of both sexes have a right to use previously separate sex intimate facilities, an issue on which Congress has not intended to legislate.” Other claims relate to violations of the 10th amendment (states’ rights), the 14th amendment (equal protection), state sovereign immunity, as well as other claims.

In related news, Dane County Executive Joe Parisi is banning travel by county employees to two southern states because of the recently passed laws he believes discriminate against LGBT people. Similarly, Madison Mayor Soglin is prohibiting city staff from traveling to North Carolina in wake of their “religious freedom” law.