Published: Fresh U. July 10, 2016. Viewable here.
In early May, the Obama administration directed all public schools and universities that receive federal funding to allow transgender students use of the bathroom which correlates to the gender they identify as, or else face a loss of federal aid and funds.
In May, North Carolina and the Justice Department sued each other after the state was threatened a loss of billions of dollars in federal funds over HB2. The law went directly against the federal government’s mandate and stated that students could only use the bathroom which correlates with their birth gender.
The Justice Department stated that HB2 directly violated Title IX of the Civil Rights Act – which protects students from discrimination based on sex in education or programs which receive federal funds.
Also in May, ten states announced a lawsuit over the Obama administration’s directive. These ten states were: Texas, Oklahoma, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Louisiana, Utah, Arizona and Georgia.
Now, 9 states have joined Nebraska in a second lawsuit filed over the directive. These states are: Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.
The total number of states challenging the directive have been brought to nearly half of the country, at 21 states.
According to the Associated Press, the Nebraska lawsuit moves that the directive is overreaching, and that under the Civil Rights Act students are protected based on their sex, not their gender identity. The lawsuit says that nowhere in past legislation is the word gender identity found, and that “neither the text nor the legislative history of Title IX supports an interpretation of the term ‘sex’ as meaning anything other than one’s sex determined by anatomy and genetics.”
In 2014, a document published by the Department of Education stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity.”
Challenges to the directive are pending in four federal appellate courts, leaving open the possibility of one of these cases traveling to the Supreme Court. Jeffrey Fisher, a Stanford law professor, told The Washington Post that there is a greater chance that the case could reach the Supreme Court if different courts come to conflicting decisions.
“The fact that a particular issue is being litigated in several states across the country weighs in favor (of Supreme Court involvement),” Fisher told The Post.