KNOXVILLE, Tennessee — Attorneys general from 20 states, including West Virginia’s Patrick Morrisey, have filed a lawsuit against the Biden administration trying to stop directives that extend sexual discrimination protections to the LGBTQ community.
Tennessee Attorney General Herbert Slatery is the lead AG on the case. His office filed the lawsuit August 30 in U.S. District Court in Knoxville, claiming the U.S. Department of Education and the Equal Employment Opportunity Commission’s legal interpretations of a U.S. Supreme Court case are too broad.
Federal agencies have issued guidance declaring that transgender students and workers are entitled to certain legal protections, but the Republican AGs claim the administration wrongly interpreted federal law and Supreme Court precedent.
Slatery
“This case is about two federal agencies changing law, which is Congress’ exclusive prerogative,” Slatery said in a press release. “The agencies simply do not have that authority. But that has not stopped them from trying.”
The suit focuses heavily on a DOE warning that the agency can investigate schools if a student is kept from joining a sports team or using a bathroom that corresponds with their gender identity or if students refuse to use a classmate’s preferred pronouns.
The complaint also notes the EEOC bars employers from requiring transgender employees to use a locker room or restroom related to their sex assigned at birth or requiring those employees to follow a dress code related to their birth sex.
The AGs say the DOE interpreted the Title IX provision of the Education Amendments Act of 1972 to cover discrimination based on sexual orientation and gender identity rather than “on the basis of sex” in educational settings.
“Even their attempts, as unlawful as they are, did not follow the Administrative Procedures Act,” Slatery said. “States over and over again have challenged federal agencies on this issue and been successful. These agencies also have misconstrued the Supreme Court’s Bostock decision by claiming its prohibition of discrimination applies to locker rooms, showers, and bathrooms under Title IX and Title VII and biological men who identify as women competing in women’s sports, when the Supreme Court specifically said it was not deciding those issues in Bostock.
“All of this, together with the threat of withholding educational funding in the midst of a pandemic, warrants this lawsuit.”
The AGs write that the agencies “in their rush to overreach, issued ‘interpretations’ of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.”
“The agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation,” the complaint states.
Several Republican-controlled states recently have passed laws banning transgender athletes from joining sports teams based on their gender identity.
The suit also names the Justice Department, Attorney General Merrick Garland and Assistant Attorney General Kristen Clarke, the head of the civil rights division, as defendants.
The multi-state coalition asks the Court to declare the EEOC and Department guidance invalid and unlawful and to prohibit their enforcement.
Joining Tennessee on the lawsuit are the attorneys general from the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.
Last month, a West Virginia federal judge blocked a new state law that banned transgendered children from participating in school sports pertaining to Becky Pepper-Jackson, who is 11 years old. Pepper-Jackson, through her mother, filed the lawsuit in May against the West Virginia Board of Education.
In the order, Judge Joseph Goodwin said Pepper-Jackson would be permitted to sign up for and participate in school athletics in the same way as her classmates.
The West Virginia Secondary School Activities Commission, the Harrison County Board of Education, the state Board of Education and the West Virginia Attorney General have asked to be dismissed from the lawsuit, arguing that they weren't the ones who created the law.
U.S. District Court for the Eastern District of Tennessee case number 21-cv-00308