Texas Leads 13 States In Lawsuit To Stop Obama Transgender Bathroom Rules

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Kevin Daley Supreme Court correspondent
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Texas and a dozen other states will seek an injunction Friday blocking Obama administration rules concerning bathrooms for transgender students in public schools.

“We are proud to lead a 13-state coalition against the Obama Administration’s latest illegal federal overreach,” Texas Attorney General Ken Paxton said in a statement. “This President is attempting to rewrite the laws that were enacted by the elected representatives of the people, and is using the threat of losing federal funding to get schools to fall into line. That cannot be allowed to continue.”

The administration sent guidance to school districts across the country in May, advising them to allow trans students to use the bathroom consistent with their gender identity. “A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX,” the letter said, in reference to the federal law banning gender discrimination in education. (RELATED: Obama Decrees ALL Public Schools Must Allow Transgender Bathroom Use)

The Department of Justice (DOJ) claims that the policies are merely recommendations lacking the force of law (meaning plaintiffs lack standing to ask for an injunction), a claim vigorously disputed by the objecting states.

“Though Defendants repeat ad nauseum that they are ‘impos[ing] no independent legal requirements on plaintiffs,’ there has been ‘no enforcement action threatened or taken,’ or their guidance documents ‘are not legally binding,’ they are nonetheless culpable for re-writing Congressional text in fact by their actions,” their brief reads. The states accuse DOJ and DOE of promulgating new rules by means of regulatory “dark matter,” a deluge of agency directives, notices, memoranda, guidance documents, and even blog posts which effectively create new policy without congressional legislation or Administrative Procedure Act protocols.

The states claim that this strategy allows agencies to evade judicial review and achieve their policy objectives — because the guidance stems from so-called “dark matter,” and it technically lacks the force of law, and therefore cannot be reviewed by the courts. Nonetheless, districts who do not abide by the guidance are targeted for punishment by the agencies, ensuring district compliance with the new agency “rules.”

“This regulatory shell game, where the federal government’s actions are purposefully designed to dodge accountability and transparency, must be stopped,” they argue.

The hearing in Fort Worth will pit the U.S. Departments of Justice and Education against Texas, Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin. The case will be heard by U.S. District Court Judge Reed O’Connor, a George W. Bush appointee.

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