Transgender-rights advocates gather near the Kentucky House chamber, March 2, 2023, in Frankfort, Ky. Source: AP Photo/Bruce Schreiner, File

Conservative States Challenge Federal Rule on Treatment of Transgender Students

Geoff Mulvihill and Sara Cline READ TIME: 4 MIN.

Several Republican state attorneys general are challenging a federal regulation that seeks to protect the rights of transgender students in the nation's schools by banning blanket policies that bar transgender students from school bathrooms aligning with their gender, among other provisions.

The officials argue the new policies would hurt women and girls, trample free speech rights and create burdens for the states, which are among those with laws adopted in recent years that conflict with the new regulations.

"This is federal government overreach, but it's of a degree and dimension like no other," Louisiana Attorney General Liz Murrill said in a news conference Monday.

One lawsuit was filed in U.S. District Court in Monroe, Louisiana on Monday, the same day the Education Department regulations on how to enforce Title IX were officially finalized. The top state government lawyers for Idaho, Louisiana, Mississippi and Montana want the court to delay the date they take effect, which is scheduled for Aug. 1.

Alabama, Florida, Georgia and South Carolina, along with four advocacy organizations filed a suit in federal court in Tuscaloosa, Alabama on Monday, and Texas filed a similar suit in federal court in Amarillo.

The attorney general's office in Indiana said that state was joining a lawsuit to be filed in Tennessee on Tuesday. Tennessee's attorney general's office said they are leading a multi-state suit to be filed, but did not confirm details.

Top government officials from South Dakota said in a news release that the state "looks forward to joining efforts to enjoin this Rule."

Filing in multiple federal courts gives the states a better chance that one of them will put the rule on hold nationally.

"The Final Rule drives a dagger through the heart of Title IX's mandate," states contend in the Louisiana court filing. "The central feature of the Final Rule is the Department's extraordinary move to transform Title IX's prohibition of discrimination based on 'sex' to include discrimination based on 'gender identity,'" which the lawyers call "a wildly ambiguous term."

The regulation, left unchallenged, could invalidate several state laws adopted in recent years – and it could preempt some under consideration by state lawmakers, including in Louisiana. The regulation applies to all schools that receive federal funding.

The states say the rule prohibits single-sex bathrooms and locker rooms, "compels school officials both to use pronouns associated with a student's claimed 'gender identity' and to force students to do so as well," and that it "cannot help but sound the death knell for female sports."

Even without the regulation, whether transgender girls can be kept out of girls sports is an unsettled legal question. Last week, a federal appeals court ruled in a 2-1 decision that West Virginia cannot bar one teenage transgender athlete from her school's girls track and field and cross country teams. The state government said it was appealing to the U.S. Supreme Court.

The federal rule opposes sweeping policies to allow transgender people from using the school bathrooms that align with their gender. At least 11 states, including Alabama, have such laws in their books already.

The lawsuit says that even though the regulation does not address sports participation specifically, it would apply there, too. In the last few years, at least 25 states have adopted laws keeping transgender girls out of girls sports competitions – all in the name of preserving girls sports.

President Joe Biden's administration previously planned to announce a policy forbidding schools from enacting outright bans on transgender girls in girls sports, but it has backed off that plan and did not include it as part of the regulation.

Still, advocates on both sides of the issue say that the new rule seems to bar at least complete bans of those sports laws.

The regulation is also murky when it comes to laws intended to protect students and/or teachers from discipline if they misgender transgender or binary students by using the wrong pronouns for them; at least four states have such laws. The regulation says that using the wrong pronoun "can constitute discrimination on the basis of sex under Title IX in certain circumstances." But it also spells out that a "stray remark" doesn't constitute harassment.

A handful of states – including Texas on Monday – have told local school districts not to change their policies against sex discrimination in light of the new regulation.

It's no surprise that the conservative states would challenge the regulation.

Attorneys general often sue over federal administrative actions, especially those from presidents of the opposite party. And the battle over the rights of transgender kids has become a huge political issue over the last few years and remains one in this presidential election year.


Mulvihill reported from Cherry Hill, New Jersey and Cline from Baton Rouge, Louisiana. Associated Press reporters Jeff Amy in Atlanta; Jack Dura in Bismarck, North Dakota; Kimberlee Kruesi in Nashville, Tennessee; and Isabella Volmert in Indianapolis contributed to this article.

by Geoff Mulvihill and Sara Cline

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