Nearly half the states in the country are now fighting to make sure that transgender students can be discriminated against in schools.
On Friday, ten states filed a federal lawsuit in Nebraska challenging the federal government’s recent guidance about the protections transgender students deserve under the law. The lawsuit joins a separate suit that Texas — along with about a dozen states or their governors — filed in May.
The Nebraska suit, which was joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming, argues that the Department of Justice and Department of Education overstepped their roles by “rewriting” the term “sex” to include “gender identity.” It challenges transgender-inclusive interpretations of both Title VII (employment) and Title IX (education), but focuses mostly on the economic implications if the states’ schools should lose federal funding by not following the guidance.
Like the Texas suit, the new suit focuses on procedural objections regarding how the guidance was issued. The Administrative Procedures Act (APA) dictates that when agencies clarify an existing rule, simply issuing new guidance is sufficient. The states contend that the departments actually created a new rule by clarifying that “sex” protections include transgender individuals, and it thus should have gone through a lengthy notice-and-comment period before being finalized.
Inherent in that argument, however, is a rejection of transgender people and their identities. Actually, it’s fairly overt:
Neither the text nor the legislative history of Title IX supports an interpretation of the term “sex” as meaning anything other than one’s sex as determined by anatomy and genetics, which was the meaning assigned “sex” by the leading dictionaries at the time Congress enacted the statute. This reality is reinforced by the fact that Congress has specifically used the phrase “gender identity” when it intended to use that concept to identify a protected class in other pieces of legislation.
In other words, the suit assumes Title IX’s enforcement should be permanently attached to a 1972 understanding of sex. The fact that trans people have failed to obtain protection under the law in the past — along with the fact that some lawmakers have tried to pass clarifying language correcting that — is somehow proof that they never should receive such protection.
The term “transgender” — recognizing that people identify as a different gender independent of a desire to pursue any kind of surgical change — was only first coined in 1965, just seven years before Title IX’s passage. Most of the research informing what society now knows about transgender people and their lives has only been conducted more recently than that — and is very much still underway. But Nebraska and the other states argue that none of that new information should inform enforcement of Title IX:
An agency action is arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or product of agency expertise.
The departments issued guidance that reflected all of the evidence available to them. To not have clarified that transgender people are protected — or to have clarified that indeed they are not protected — would have actually “run counter” to the evidence.
When the Department of Justice filed its suit challenging North Carolina’s anti-transgender law HB2, it laid out this understanding. An individual’s sex “consists of multiple factors,” the Department wrote, including “hormones, external genitalia, internal reproductive organs, chromosomes, and gender identity, which is an individual’s internal sense of being male or female.” When those factors are not in alignment, “the person’s gender identity is the primary factor in terms of establish that person’s sex.”
But the states in the Nebraska suit are less concerned with how transgender people identify and more concerned with how everybody else feels about being around them, accusing the departments of failing to consider “important aspects of the dignity and privacy issues implicated for schools and other institutions caused by redefining the word ‘sex’ in these statutory schemes.”
The suit constantly reasserts that individuals deserve access to restrooms or locker rooms based on their “biological sex,” insinuating that the guidance upends that possibility. “There are no limits whatsoever on how or why an individual so identifies,” it warns, suggesting that anybody can get access to any facility by just changing their gender identity on a whim.
Notably, the suit never even actually uses the word “transgender” when not quoting from another document.