Originally posted on IdahoEdNews.org on September 3, 2021
Idaho has joined 19 other GOP-led states in suing the Biden administration over its assertions that federal law protects LGBTQ students from discrimination “on the basis of sex.”
The move marks an effort to shield the state’s transgender athlete ban from a legal challenge.
The Biden administration in June issued guidance saying that Title IX — a federal law that protects students from discrimination in education and sports on the basis of sex — applies to gay and transgender students. The policy is a return to Obama-era guidance. The Trump administration took the opposite view.
The Biden administration’s “notice of interpretation,” a piece of the guidance, said the restored understanding of Title IX would guide the U.S. Department of Education in conducting investigations, but “it does not determine the outcome in any particular case or set of facts.”
The states’ lawsuit argues that federal officials could inflict “irreparable” harm by withholding federal education funding. The lawsuit also alleges that federal agencies are infringing on state and congressional power, rewriting law “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 state attorneys general requested that the guidance be cast aside, not enforced, and that the court declare that Title IX doesn’t prohibit states from having laws that divide sports teams based on sex, among other asks.
Their lawsuit ridicules the Biden Title IX guidance as “arbitrary, capricious, an abuse of discretion” that calls into question laws based on “longstanding regulations allowing sex-separated living facilities and athletic teams.”
States filed the complaint Monday with the U.S. District Court for the Eastern District of Tennessee, according to the Hill. Tennessee Attorney General Herbert Slatery is leading the case; his state has restrictions on transgender students participating on school sports teams and using school bathrooms of their choice.
The states’ arguments will be familiar to federal officials. In July, the same 20 states, plus Texas, penned a letter to President Biden condemning the same set of guidance as “a 180-degree change” from the Trump administration that “goes far beyond interpreting Title IX and instead seeks to rewrite it.” The suit is centered on the same concerns the letter laid out. Those include that the Biden administration is erroneously applying the definition of sex-based discrimination used in a landmark Supreme Court decision from last year, which ruled employees can’t be discriminated against for their LGBTQ status.
States like Idaho contend that newly established protections against discrimination based on “sex” in the employment law don’t apply to Title IX, an education law.
A separate lawsuit challenging Idaho’s state law barring transgender women and girls from competing in school women’s and girls’ sports motivated the state to join the lawsuit, spokesperson Scott Graff said by email Friday.
The first of its kind in the U.S., Idaho’s transgender athlete ban was passed by the state’s supermajority Republican Legislature and signed into law by Republican Gov. Brad Little in 2020. The idea was exported across state lines; as of April, over 30 states were considering similar bills, the Idaho Capital Sun reported. Alabama, Arkansas, Alaska, Montana and Tennessee have passed similar laws since, and are now party to the lawsuit against the Biden administration.
Enforcement of Idaho’s ban, dubbed the Fairness in Women’s Sports Act, is temporarily on hold while a federal court weighs challenges to its constitutionality. Those challenges, laid out in the Hecox v. Little case, are focused on the Equal Protection Clause of the Fourteenth Amendment and the Fourth Amendment. Opponents argue the law would trigger unconstitutional searches and seizures, since it would allow any person to challenge the sex of a student-athlete on a team for women or girls, forcing an invasive medical exam to prove their sex.
It’s unclear when, but another hearing is expected in the ongoing Hecox v. Little case this fall, possibly in October.
Further reading: EdNews outlines the ins and outs of the ongoing federal-versus-state legal dispute in this July report.