Texas, joined by 10 other states, filed a lawsuit Wednesday to stop a federal directive instructing school districts to let transgender students use the bathroom that corresponds with their gender identity, Attorney General Ken Paxton announced Wednesday.
Calling the Obama administration guidelines “outside the bounds of the constitution,” the McKinney Republican said that the state was taking action to protect a school district near the Oklahoma border that had passed a policy earlier this week requiring students to use bathrooms according to the gender cited on their birth certificates.
“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy puts the safety of their students first,” said Paxton. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of Obama administration which has maintained it will punish anyone who doesn’t comply with their orders.”
The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Paxton said they had joined because the issue was of national importance.
“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” he said.
The Obama administration guidelines stated transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits discrimination on the basis of gender at education institutions that receive federal funding. It does not have the force of law, though school districts could risk losing federal money if they do not comply.
Harrold superintendent David Thweatt, who joined Paxton at the Austin news conference, said his school board had passed the policy out of concern for the "safety, security, and dignity of the children." None of the 100 students currently enrolled there identify as transgender, he said.
Concerns about the safety of allowing transgender people to access the bathrooms that correspond to their gender identities draw deep skepticism from LGBT advocates. With virtually no evidence of attacks coming from such policies in any states, they say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them.
When asked Wednesday, neither Paxton nor Thweatt could point to instances where allowing transgender students access to the bathrooms that correspond to their gender identities had threatened anyone's safety.
Since the Obama administration issued the new guidelines earlier this month, they have generated widespread outrage among Texas Republicans, fueling full-throated attacks from many party leaders including Lt. Gov. Dan Patrick and U.S. Sen. Ted Cruz.
Paxton has previously sought legal clarification on the divisive issue. Earlier this month he joined with lawyers from Oklahoma and West Virginia to write a letter to the U.S. Justice and Education departments asking whether states would lose federal funding if their school districts did not comply with the directive, which does not have the force of law.
With the lawsuit, Paxton sets the stage for Texas to become the next battleground in the explosive national debate over the right of transgender people to decide which bathroom they use. It also shifts the spotlight from Patrick, who has so far been the state’s most vocal elected official on the issue.
Patrick — who generated headlines earlier this month when he called for the resignation of a Fort Worth superintendent over that district's policies that instructed educators to acknowledge students' chosen gender identities — has urged superintendents around the state to resist pressure from the federal government to follow the Obama administration guidelines.
At a Round Rock stop on his book tour Wednesday morning, Gov. Greg Abbott said Paxton was "challenging the way that the Obama administration is trampling the United States Constitution.”
"The president has no authority to enact laws whatsoever. Several times Congress has taken up the issue of whether to expand the Civil Rights Act and Title IX and whether or not to include transgender. Both times or multiple times, Congress has decided against that," said Abbott, who first announced the lawsuit in a tweet Wednesday.
When asked whether he had any input on the attorney general's decision to challenge the directive, Abbott said the lawsuit was Paxton's "determination."
He also defended the cost of suing the federal government over the issue.
"There is no price that can be put on a president violating the Constitution," he said. "This country abandons its fundamental principle when we have a president who says he is above the law. Barack Obama has repeatedly said he is above the law. Texas is going to put a stop to that."
The battle over the issue burst into national view in March after the North Carolina General Assembly passed House Bill 2, which prohibited transgender people from using bathrooms that do not match the gender on their birth certificate. The controversial law, which has prompted some businesses to reconsider their investments in the state, is now the subject of a federal civil rights lawsuit.
A statewide bathroom law may be in the cards for Texas when lawmakers come back to Austin for the 2017 legislative session in January. Patrick — who as lieutenant governor wields considerable influence over the legislative agenda — said last month that such legislation would be a priority.
Patrick Svitek contributed reporting to this story.
This story has been updated.
