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Lawsuits & Litigation

20 Attorneys General Challenge Biden Admin’s Transgender Guidance

— September 5, 2021

The Biden administration wishes to make discrimination against transgender students, athletes, and employees a violation of Title IX.

At least 20 attorneys general have signed onto a lawsuit challenging the Biden administration’s move to extend federal sex discrimination protections to non-heterosexual people, including transgender school athletes and individuals who wish to use workplace bathrooms in accordance with their gender identity.

According to The Idaho Statesman, the lawsuit was filed by Tennessee Attorney General Herbert Slatery in U.S. District Court in Knoxville, TN.

In his lawsuit, Slatery suggested that guidance issued by the U.S. Department of Education and the Equal Employment Opportunity Commission are based on faulty interpretations of Supreme Court case law.

The Statesman recalls that, earlier this summer, the Education Department announced that discrimination on grounds of a student’s gender identity would be treated as a violation of Title IX, part of a 1972 law shielding people from sex discrimination in education settings.

The agency’s own analysis found that there is “no persuasive or well-founded basis” to permit discrimination banned in employment in education.

The Idaho Statesman observes that the Biden administration’s directives are likely intended to combat anti-transgender legislation and orders in Republican-governed states.

LGBTQ flag. Image via Quote Catalog, Flickr, CC BY 2.0, no changes.

Many of these laws prohibit transgender women—who are biologically male—from participating in female sports.

Conservative lawmakers and attorneys general have broadly contended that, even with controls in place, transgender women retain an unfair advantage over biological females.

The lawsuit suggests that the Biden administration overstepped its authority to set sweeping guidance—authority which should “belong to Congress, the States, and the people.”

Ohio Attorney Dave Yost, for instance, said his state’s participation in the lawsuit “is not about the wisdom of the administration’s policy,” but about the proper allocation of state and federal power.

“Rule by administrative overreach may seem convenient, but tossing the process our Constitution requires will inevitably trample the liberties of our most vulnerable,” Yost said. “I will always defend the rights of our citizens to be a part of the legislative process and work to stop the abuses of a recalcitrant administrative state determined to bypass them.”

The lawsuit further asserts that the Biden administration, while seeking to address a matter of national controversy, has attempted to subjugate states’ sovereignty.

“The guidance purports to resolve highly controversial and localized issues such as whether employers and schools may maintain sex-separated showers and locker rooms, whether schools must allow biological males to compete on female athletic teams, and whether individuals may be compelled to use another person’s preferred pronouns,” the lawsuit states. “But 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 lawsuit asks a federal court to declare that Title IX shall have no impact upon schools’ ability to sort bathrooms and sports leagues by biological sex; it also demands that neither employees, educators, nor students be compelled to refer to anyone by their “preferred pronouns.”


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