Transgender rights are being litigated in several states and Michigan Attorney General Bill Schuette joined one of two multi-state lawsuits with attorneys general challenging the federal government. Specifically, the Obama administration’s federal guidance directing schools to allow transgender students to use restrooms and other facilities that match their gender identities is under attack.
The first lawsuit was filed two weeks after the guidance was issued in May in the U.S. District Court for the Northern District of Texas. Eleven states, along with the Arizona Department of Education, agreed the guidance “has no basis in law” and could cause “seismic changes in the operations of the nation’s school districts.”
Opponents doubled down, filing a brief in federal court in July to stop the Obama administration from enforcing its interpretation of the laws. U.S. District Judge Reed O’Connor issued a nationwide preliminary injunctionruling that federal officials didn’t follow proper procedures in creating the directives. O’Connor said the guidelines contradicted existing statutes and regulatory texts.
Around the same time, a second lawsuit was filed in federal court in Nebraska by 10 more states, including Michigan, which contains many of the same claims raised in the Texas-led lawsuit.
The Nebraska lawsuit hinges on the terms “sex” and “gender identity,” saying federal law uses only the term “sex.” The lawsuit further states 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 as determined by anatomy and genetics.”
But Joshua Block, senior staff attorney with the ACLU LGBT Project, told POLITICO online that the lawsuits are purely political, noting the administration’s directive is non-binding.
“Disagreeing with the Obama administration’s interpretation of the law doesn’t give them standing to sue over it,” he said.
Both lawsuits deemed “harmful” by Equality Michigan “relegate transgender people to second-class citizenship under the law and makes them more vulnerable to discrimination than ever,” said Nathan Triplett, EQMI’s director of public policy and political action.
“For years the federal government has interpreted existing Title IX and Title VII laws to extend coverage to transgender Americans,” Triplett said. “Because of the Obama administration’s actions, public schools must respect students’ gender identity when it comes to using the restroom; healthcare companies are not allowed to deny coverage to patients just for being transgender; and transgender workers have a path to legal recourse if they are fired for being who they are.”
But Schuette wants to strip away those protections as indicated by his letter to U.S. Attorney General Loretta Lynch and Secretary of Education John King in May. The letter requested that the Obama administration immediately retract its directive, referred to as the “Dear Colleague Letter on Transgender Students” that was sent to schools that are recipients of federal funding subject to the requirements of Title IX.
“This top-down attempt to control local decision-making failed to involve all parents, who must be involved in decisions involving their children at school. Here in Michigan and across our country, we must not exclude parents,” Schuette said. In July, he released a statement reinforcing his position when he made the choice to join the lawsuit.
“Every child in every school must be provided with dignity, privacy, respect and safety. That is why today, I joined a coalition of 10 attorneys general, led by the State of Nebraska, in a lawsuit that seeks to protect the dignity and privacy of all Michigan students. The Obama administration’s unilateral directive on education policy and Title IX funding is yet another example of federal overreach. The manner in which this directive was made ignored the essential role of parents in making decisions about their children, omitted participation of local schools, violated the Administrative Procedures Act and bypassed Congress’ constitutional responsibilities.”
Since then, the State Board of Education adopted a guidance in September on how Michigan schools can create safe learning environments for all students, regardless of their sexual orientation or gender identity. Educators have a responsibility to involve parents in discussions of LGBTQ students’ rights, according to the new guidelines. “Of course parents are to be involved with the schools about their child and their status,” board president John Austin told The Detroit Free Press. But that responsibility must be balanced with the safety of the children.
“When students have not come out to their parent(s), a disclosure to parent(s) should be carefully considered on a case-by-case basis,” the guidance states. “School districts should consider the health, safety and well-being of the student as well as the responsibility to keep parents informed.”
So when asked what Schuette joining the lawsuit is really about, Austin said, “Not wanting to acknowledge the rights of LGBT people at all.”
Lynch issued a statement that there is no room for this kind of discrimination in our schools.
“…Including discrimination against transgender students on the basis of their sex. This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies,” she said. “I look forward to continuing our work with the Department of Education – and with schools across the country – to create classroom environments that are safe, nurturing and inclusive for all of our young people.”
And while the preliminary injunction sends a “terrible message” to transgender students across the country who are now back in school, Triplett said the ruling changes nothing about the substantive legal rights of transgender students or the inclusive policies in place within their schools.
“There are no laws on the books now, no cases here in Michigan that should result in any school district from denying transgender students access to bathrooms,” he said.
As defendants continue to robustly defend the legitimacy of the Obama administration’s guidance, Triplett encourages any student that is not being treated appropriately to “absolutely avail themselves of the remedies available under Title IX despite these unfortunate lawsuits by a collection of conservative attorneys general across the country.”
In the meantime, as the case awaits consideration by a higher court, Triplett said, “Attorney General Schuette needs to know that his involvement in a case like this is about so much more than signing his name to a piece of paper. It’s about wasting Michigan’s taxpayer dollars to dehumanize transgender people across our country.”
That’s why EQMI is teaming up with their national partners at Freedom for All Americans and community supporters to circulate a petition that will send a clear message to Schuette that “the people of Michigan will not stand for this.”
That message in the form of thousands of signatures will be hand-delivered by pro-equality advocates from across the state to Schuette’s office. Triplett said the public pressure will continue in the hopes that Schuette will withdraw from the lawsuit, which is in the early stages of the process. So, he said, “There is plenty of time for him to make the right decision for LGBT people in Michigan.”