Not to be confused with a previous lawsuit filed by a group of states led by Texas, a new group of states has filed an anti-transgender lawsuit against the federal government.
The new group states (Nebraska, Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, Wyoming) has filed their lawsuit in the state of Nebraska where the state attorney general has accused the Department of Justice of not understanding process or the law.
I couldn't even type that with a straight face.
Nebraska Attorney General Doug Peterson says in a news release that the U.S. Education Department and Justice Department have circumvented established law and the process for changing existing laws. Peterson also says the rule takes away the authority of local school districts to deal with such issues on an individualized basis.
Here's the thing: local school districts have never had the authority to discriminate at their discretion, at least not since the Civil Rights Act was passed.
Schools cannot discriminate against black, Asian, Latino, disabled, or gay children. They cannot discriminate against transgender children.
The Department of Justice has not taken anything away from local school districts because discriminating against transgender students was never their right. Discriminating against transgender students may have been their policy, but that is not a policy that is protected by the law.
To be clear, the Department of Justice and Department of Education have not actually rewritten any laws as these plaintiff states allege. The federal government has merely issued guidelines stating that transgender rights are protected under Title IX of the Civil Rights Act, meaning school districts may be denied federal funding for violating it. The federal government also reserves the right to challenge the constitutionality of these policies in federal court.
At least one federal court of appeals, the 4th Circuit Court of Appeals, has already sided with the Justice Department's point of view by ruling that transgender discrimination violates the Equal Protection Clause of the Fourteenth Amendment.
The large group of states now challenging these federal guidelines against transgender discrimination are essentially challenging the Civil Rights Act and the Constitution itself. They evidently believe transgender students should not be afforded equal protection under the law and they do not believe the gender identity of transgender students is covered by Title IX which explicitely bars discrimination based on gender.
It's exceptionally difficult for me to see the Supreme Court ruling in favor of these states. Doing so would require rewriting the meaning of words but we've come fairly close to that several times in recent years. Most notably, Obamacare narrowly survived a Supreme Court case challenging the meaning of a single word in a single sentence.
That Antonin Scalia no longer sits on the court greatly increases the chance the court will rule against these states.