Eleven states—led by Texas—filed a federal lawsuit today, arguing that the Obama administration’s redefining “sex” to include gender identity—and threatening to sue and strip funding from states and schools that refuse to go along—violates both federal law and the U.S. Constitution.
In public letters, agency documents, and a federal lawsuit filed earlier this month, the U.S. Department of Justice (DOJ) and U.S. Department of Education declare that any school that does not allow boys and girls to use whichever bathroom, locker room, and shower facility they claim to “identify” with thereby violates Title IX of the Civil Rights Act of 1964, and can be stripped of all federal funding.
In other words, if a 17-year-old boy says that he now identifies as a girl — and wants to use his high school girls’ shower at the same time that a 15-year-old girl is showering in that same shower room — and the school does not allow the boy to share the shower with the girl, then the federal government can strip that high school of federal funding.
More broadly than that, the Obama administration says that any employer who does not treat an employee as a member of whatever sex the employee claims to identify with — including calling the employee “he” or “she” in accordance with the employee’s gender identity — that employer is engaging in sex discrimination in violation of Title VII of the Civil Rights Act.
Today, these states — along with several education departments and local school districts — filed suit in U.S. District Court for the Northern District of Texas. Spearheaded by Texas Attorney General Ken Paxton, the lawsuit alleges ten counts of illegal activity, including violations of the Tenth Amendment and Fourteenth Amendment of the U.S. Constitution, as well as multiple federal statutes.
In paragraph 87, the lawsuit’s civil complaint explains:
The text employed by Congress does not support the term “sex” as anything other than one’s immutable, biological sex as determined by birth. Rather, Congress expressed its intent to cover “gender identity,” as a protected class, in other pieces of legislation. See, e.g., 18 U.S.C. § 249(a)(2)(A); 42 U.S.C. § 13925(b)(13)(A). In those pieces of legislation, Congress includes “gender identity” along with “sex,” thus evidencing its intent for “sex” to retain its original and only meaning—one’s immutable, biological sex as determined at birth.
The lawsuit seeks a judicial declaration that the Obama administration’s ordering states and employers to reject a worldwide millennia-old definition of “sex” is illegal, invalidating the federal rules and guidance documents that demand this redefinition, and stopping the federal government from withholding funding or initiating lawsuits to enforce its novel definition.
The plaintiffs also highlight what they regard as liberal hypocrisy on this issue. In paragraph 24, the complaint quotes a 1975 Washington Post editorial from Ruth Bader Ginsburg—who at the time was a law professor at Columbia Law School—where Ginsburg asserted, “Separate places to disrobe, sleep, [and] perform personal bodily functions are permitted, [and] in some cases required, by regard for individual privacy.”
Ironically, there is one argument the Obama administration’s lawyers could make to try convincing the district court to dismiss this case, but it is an argument they cannot make without torpedoing their own agenda. DOJ lawyers could assert that the administration’s letters and guidance documents do not carry any inherent force of law, and therefore are not federal regulations or governmental actions over which the states or schools could sue. If so, the case must be dismissed.
However, in doing so the Obama administration would announce to the nation that everyone could ignore the White House’s crusade to push a new sexual orthodoxy. Everyone would ignore the administration’s new transgender position, and every federal court could then hold that the administration is “judicially estopped” from bringing any lawsuits to force compliance, as DOJ recently did in North Carolina.
The case is Texas v. United States.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.