Kansas weighs new challenge against feds over transgender policy

Kansas faced pressure to get on board a Texas-led lawsuit against the Obama administration over its policy protecting the rights of transgender students to use the bathroom consistent with their gender identity.

Two more states, Kentucky and Mississippi, embraced the Texas effort Friday. Meanwhile, Kansas Attorney General Derek Schmidt has already joined another key case that’s moving its way through federal court.

Last month, a three-judge panel from the U.S. Court of Appeals for the Fourth Circuit in Virginia sided 2-1 with a transgender student over bathroom access, but sent the case back to a lower court.

The Virginia ruling and the Texas lawsuit come amid a nationwide uproar over the right of transgender people to use the bathroom that’s consistent with their gender identity, though prominent legal experts say the issue has been simmering for years.

“The idea that bans on sex discrimination cover transgender people is just not new,” said James Esseks, director of the American Civil Liberties Union’s Lesbian, Gay, Bisexual and Transgender and HIV Project.“We’ve all been living with this for years.”

Opponents of such rights claim that anyone can claim to be transgender to gain access to any restroom, threatening the privacy and safety of others using it. Supporters, however, say it is transgender people who face greater risk of harassment and violence if the law forces them to use the restroom that doesn’t match their gender identity.

“To portray the non-transgender kids as victims is so turned on its head,” said Jennifer Pizer, law and policy project national director for Lambda Legal, a gay rights organization.

In March, North Carolina’s legislature approved a measure that requires transgender people to use the bathroom that reflects the gender on their birth certificate, setting up a conflict with the federal government, which says the state law violates civil rights law.

The state and the Obama administration filed dueling lawsuits earlier this month.

The Texas case, which opposes the federal government’s efforts to protect transgender students, claims no specific example of harm the policy creates. In the Virginia case, however, a transgender male student challenged his school district’s policy that requires him to use the bathroom that reflects the gender on his birth certificate.

Kansas is one of eight states supporting the Virginia school district’s policy.

Schmidt and five other attorneys general, plus the governors of Maine and North Carolina, asked the full Fourth Circuit to rehear the case in a document filed on May 10.

“These states share an interest in maintaining control of their schools and ensuring that the United States Department of Education not interfere with these schools by manufacturing ambiguity in the plain text of Title IX or its longstanding regulations,” they wrote.

On May 13, the U.S. Department of Education sent guidance to school districts across the country that Title IX of the Education Amendments of 1972 protects transgender students from discrimination under the law’s provision that prohibits sex discrimination at any school that receives federal funding.

On Wednesday, Texas Attorney General Ken Paxton launched a lawsuit with 10 other states challenging the department’s ability to effectively withhold funds from schools that didn’t comply with the department’s interpretation of Title IX.

Pizer, of Lambda Legal, said there was no imminent threat of the schools losing funds.

“It’s been decades since there’s been any funds cut off,” she said.

The 10 state attorneys general and the governors of Maine, Kentucky and Mississippi claim that the department’s interpretation of Title IX exceeded the authority given by Congress when it established the law.

“The new rules, regulations, guidance and interpretations described herein,” they wrote, “go so far beyond any reasonable reading of the relevant congressional text such that the new rules, regulations, guidance and interpretations functionally exercise lawmaking power reserved only to Congress.”

They added that the department needed to open its transgender policy to public comment and review, the standard process for most regulatory matters under the federal Administrative Procedure Act.

Pizer said the courts usually defer to federal agencies to make interpretations of laws passed by Congress. For example, federal civil rights law does not directly address whether sexual harassment or sex stereotypes constitute sex discrimination. But the government has interpreted the law to include those things, and the courts have upheld it.

“It’s simply not the case we need Congress to address every specific thing that comes up,” she said. “That’s what the agencies are for.”

On April 19, the Fourth Circuit panel, in its dismissal of a district court ruling, agreed. The Education Department, it concluded, possesses reasonable power to interpret that Title IX’s sex discrimination provision protects transgender people from discrimination.

In their May 10 friend-of-the court brief supporting the Virginia school district, Schmidt and the other state attorneys general argued that Congress, not the department, had the power to make that determination.

“These are policy questions that should be answered by the people’s elected representatives,” the states wrote, “not the courts or the federal executive.”

Including the Fourth Circuit in Virginia, five of the 13 U.S. circuit courts of appeals have now affirmed that federal law barring sex discrimination protects transgender people.

“This is not something that just happened for the first time a couple of weeks ago,” said Esseks, of the ACLU.

Esseks said there are likely to be more court cases on the issue that will eventually take it to the Supreme Court.

“There’s going to be a bunch more in the lower federal courts,” he said. “That’s already happening.”

This story was originally published May 27, 2016 at 5:29 PM with the headline "Kansas weighs new challenge against feds over transgender policy."