Nine states join Nebraska in suit over transgender bathroom policy

July 9, 2016 GMT

Nebraska took the lead Friday in 10 states’ fight against new federal guidance on school locker room and bathroom use by transgender students, asking a U.S. District judge to declare the new rule unlawful.

A civil liberties group criticized the lawsuit as “playing politics.”

The changes, made public in a joint letter May 13 by the U.S. Department of Education and U.S. Department of Justice, sparked national debate and a lawsuit by Texas and a dozen other states.

In it, they told schools that receive federal funding they now must allow transgender students to use restrooms and locker rooms according to their expressed gender, or risk losing the funding.

This week, as the Nebraska Attorney General’s Office prepared to file its complaint, attorneys in the Texas case sought a nationwide injunction to block the Obama administration from enforcing the changes.

Nebraska, along with nine other states, mounted its legal challenge Friday, focusing, in part, on the fact that the changes came via the executive branch and not Congress.

“Defendants lack authority to amend those laws by executive fiat and to threaten plaintiffs and their subdivisions with the loss of billions of dollars in federal education funding if plaintiffs continue to abide by the laws Congress actually passed,” Nebraska Chief Deputy Attorney General David Bydalek wrote in the lawsuit.

That’s a big stick, Attorney General Doug Peterson said later in the day.

In the 2015-16 fiscal year, the Nebraska Department of Education received more than $328 million in federal funding for K-12 education, of which $308.5 million was distributed to local school districts in the state, according to the lawsuit.

The state gets another roughly $327,000 for schools it oversees at the Nebraska Correctional Youth Facility and at Geneva and Kearney.

“When a federal agency takes such unilateral action in an attempt to change the meaning of established law, it leaves state and local authorities with no other option than to pursue legal clarity in federal court in order to enforce the rule of law,” Peterson said.

What’s troubling, he said, is that the federal change disregards the work done by local school districts, which now are creating individualized plans to meet the needs of all students.

He said while the issue comes up only rarely in Nebraska, school districts are handling it in a very appropriate way that involves the student, the child’s parents and health care workers.

Now, it simply can be decided by a 15-year-old kid, Peterson said.

And new guidance presumes junior high and high school kids will act responsibly, he said. He’s not so sure.

“It’s putting school districts in a terrible position,” Peterson said. “It’s trying to push a certain agenda through our school systems, and we need to simply stand up and say this does not make sense.”

Nine other states -- Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming -- joined Nebraska in the lawsuit.

Danielle Conrad, executive director of the ACLU of Nebraska, said the recent federal guidance doesn’t create any new obligations for Nebraska schools, but provides important clarity about best practices to protect all students from gender discrimination.

She said the ACLU has successfully resolved these issues without fanfare or costly litigation with various Nebraska school districts on behalf of transgender students and their families.

“While there is increased attention on transgender students and legal protections for them, the reality is transgender students have been attending our schools and going to the gender-appropriate facilities for decades without incident,” Conrad said.

She said the ACLU commends the educational professionals on the front lines in Nebraska who are doing the right thing to ensure transgender students are treated with dignity and respect.

“It is time for our state leaders to stop playing politics with the lives and well-being of young transgender Nebraskans and fully live up to our state’s motto of ‘Equality before the law,’” Conrad said.

In a statement Friday, Gov. Pete Ricketts said he fully supported Peterson’s “challenge to the Obama administration’s overreach and their attempt to bully states and school districts on this issue.”

“The guidance promulgated by the President’s agencies represents his political views, and does not carry the weight of law,” he said.