Tennessee Joins States Suing Obama Administration Over Transgender Student Bathroom Rules

Tennessee is one of 11 states that have filed a lawsuit in federal court over guidance from the Obama administration directing public schools to allow transgender students to use bathrooms corresponding to their gender identity. 

The suit is led by Texas Attorney General Ken Paxton.

State legislators had been contemplating a special session over the issue, but have backed off those plans since receiving assurances that the state's attorney general, Herbert Slatery, that he would defend school districts who get sued for not following the directive. That's the case in Sumner County, where the ACLU of Tennessee last week filed a federal complaint with the U.S. Department of Education’s Office for Civil Rights over a policy there that contradict's the administration's order.

Slatery's office released this statement Wednesday afternoon on Tennessee's involvement in the new lawsuit against the feds:

The Executive Branch has taken what should be a state and local issue [under the Tenth Amendment] and made it a federal issue. Schools that do not conform under the new rules risk losing their federal funding. This is yet another instance of the Executive Branch changing law on a grand scale, which is not its constitutional role. Congress legislates, not the Executive Branch. Our Office has consistently opposed efforts like this to take away states’ rights and exclude the people’s representatives from making these decisions, or at a minimum being able to engage in a notice and comment period under the Administrative Procedures Act (APA). As the complaint describes, it is a social experiment implemented by federal departments denying basic privacy rights and placing the burden largely on our children, not adults. Sitting on the sidelines on this issue was not an option.

Slatery goes on to say that the Obama administration is "incorrectly interpreting" Title IX, which expanded protections banning discrimination based on  race, color, religion, sex or national origin to federally funded education programs.

From Slatery:

Title IX prohibits discrimination on the basis of “sex” – defined to be a biological category based principally on male or female anatomy. The Administration is incorrectly interpreting Title IX to include self-proclaimed gender identity. By issuing this change as a “guideline,” DOE and DOJ are sidestepping the APA and infringing on a legal territory reserved for the legislature. Tennessee is initiating this lawsuit with the other states to contest the action for all of these reasons

Other states that have joined the lawsuit along with Texas and Tennessee are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Utah, West Virginia, and Wisconsin.

You can read the complaint here. Buzzfeed's Dominic Holden has a good summary of the legal background.

Last week, Tennessee Republican Sens. Lamar Alexander and Bob Corker announced that they and 23 other Republican senators had signed a letter telling the Obama administration "that it cannot tell the nation’s 100,000 public schools how they must answer the question of which bathrooms, locker rooms and showers transgender students may use."

Meanwhile, The Tennessean has been reporting on leaked emails that show the way presidential politics factored into legislators' feelings about a special session. 

“All we have to do is ride out the clock," wrote Republic Rep. Susan Lynn, the sponsor of a transgender bathroom bill, in an email obtained by the daily. "Next year we will have President Trump and he will not pursue us over this nor will his DOE (Department of Education) nor justice department make the same assessment.”

Update (3:45 p.m.):

Outgoing Lt. Gov. Ron Ramsey and House Speaker Beth Harwell weigh in:

Ramsey:

I am extremely pleased to see this action taken by Tennessee Attorney General Slatery. It is quite clear that Obama's directive is not about tolerance. It is about forcing the tyrannical whims of an infinitesimal minority on the majority.

Our first priority must be the safety and protection of our wives and daughters, not political correctness. I am proud to stand with General Slatery as we resist this attempt by the Obama administration to force its twisted social experiment upon our state.

Harwell:

The federal government's overreach on this issue is concerning, and I believe these decisions are best made at the local level. I'll await the outcome of the case.

Update (4:50 p.m.): 

A statement from Gov. Bill Haslam's press secretary, Jennifer Donnals:

The governor fully supports Gen. Slatery’s action on behalf of our state. He disagrees with the Obama administration’s overreach and heavy-handed approach. Congress has the authority to write the law, not the executive branch.

Update (5:20 p.m.): 

A statement from Hedy Weinberg, Executive Director of ACLU-TN:

Title VII and Title IX have long prohibited discrimination on the basis of sex, and federal courts and agencies have recognized that this includes protections for transgender people. Like guidance issued by federal agencies for decades, the guidance in question does not change the law, but explains what agencies think existing law requires. The Supreme Court has made clear that you cannot sue an agency just because you disagree with the agency’s non-binding guidance. Moreover, because the guidance is nonbinding, this lawsuit appears to be nothing more than politically-motivated. But underneath all of the political bluster are real students, young people who should not have to live in fear of punishment or harassment every time they use the restroom like their peers, or be made to feel like second-class citizens merely for being themselves. We will continue to work toward a day when all students in Tennessee are treated fairly under the law.