Last week, Wisconsin joined Texas and nine other states in challenging the Obama Administration’s Title IX guidance on gender identity and use of facilities by transgender students. Under the guidance, schools must allow transgender students access to bathrooms and locker rooms consistent with their gender identity.
In his May 25 press release, Wisconsin Attorney General Brad Schimel asserts that by reinterpreting the word “sex” to include “gender identity” without Congressional. consent or approval, the federal guidance amounts to executive overreach that undermines Wisconsin sovereignty and independence.
At issue is a May 13 directive from the federal Department of Education and the Justice Department, which notes 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.