Texas AG on Bathroom Edict: ‘How You Feel About Your Gender Does Not Change Your Sex At Birth’

By Joe Setyon | July 14, 2016 | 1:56pm EDT


Texas Attorney General Ken Paxton. (AP photo)


(CNSNews.com) – Texas Attorney General Ken Paxton, who is leading a coalition of 13 states challenging the Obama administration’s directive that schools receiving federal funds must treat students based on their preferred gender identity, pointed out that one’s gender identity “does not change your sex at birth.”

“How you feel about your gender does not change your sex at birth, and how the president feels about his authority to write laws cannot change the fact that the Constitution grants that power to Congress,” Paxton said.

Paxton joined Kyle Duncan, whose law firm Schaerr Duncan LLP is  representing the North Carolina Legislature in its legal defense of House Bill 2 (HB2), in a discussion of the transgender issue at the Heritage Foundation last week.  

In May, the Department of Justice (DOJ) and the Department of Education (DOE) released a “Dear Colleague” letter, which stated that in accordance with Title IX, schools across the country must not discriminate against students based on their gender identity. As a result, “transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”

In response, the attorneys general of 13 states are trying to convince a federal judge to strike down the directive.

“There are hosts of reasons why letting 14-year-old boys into girls’ locker rooms is a bad idea,” Paxton pointed out.

"The changes the guidance letter would cause would cause the kind of irreparable harm the courts have the power to prevent with a preliminary injunction. And we hope to have a preliminary injunction in place before school starts in August," he stated.

Paxton emphasized the importance of understanding what the term “sex discrimination” actually means, because he says the Obama administration is not using it in the correct context of Title IX.

“The implementing agency regulations for Title IX permitted schools to provide separate toilet, locker rooms and shower facilities on the basis of sex,” he said.

He added that Congress “has rejected every attempt to prohibit gender identity discrimination in Title IX” and “has expressly added gender identity protections in other limited areas of the law like hate crimes and violence against women.”

The Texas attorney general reasoned that members of Congress know there is a difference between sex and gender, adding that the Obama administration is trying to bypass Congress because they would not go along with his definition.

Paxton went on to identify several more of the legal arguments he is using against the DOJ’s transgender directive.

The Administrative Procedure Act requires that “legislative and substantive rules” go through a period of public participation. Paxton said that since the gender identity edict was a binding rule, it should have been subject to this act.

Two other arguments involve “the spending clause of the Constitution.”

According to Paxton, the Tenth Amendment's “clear notice” principle requires that when states receive federal funding, they must know beforehand “what terms they are actually agreeing to” according to “the unambiguous text of the federal law.”

“No federal agency can validly change the terms of that deal to prevent discrimination on a person’s feeling about their gender,” Paxton said.

Finally, since “the states are sovereign,” Paxton said he does not believe the federal government can hold “a gun to the head” of the states to coerce them into either following a certain edict or forfeiting their federal funding.

Following Paxton’s presentation, Duncan explained why he thinks the federal government does not have a case against North Carolina's new bathroom law, which requires individuals to use public restrooms and showers that correspond to the gender listed on their birth certificates.

In May, DOJ filed a lawsuit against the state over HB2, which it claims “denies transgender people access to sex-segregated bathrooms and changing rooms consistent with their gender identity.”

According to Duncan, DOJ is not relying on Title IX or any of “the normal legal tools for interpreting law” as the basis for the lawsuit, “but instead a letter from the Office of Civil Rights (OCR) and the Department of Education written in January 2015 that purports to interpret Title IX’s regulation as ambiguous.”  

In the 2015 letter Duncan referred to, OCR claimed that though “Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances,” schools must still “treat transgender students consistent with their gender identity.”

But Duncan argued that “gender identity and sex are separate concepts, and when Congress wants to legislate them in some particular area, it knows how to do so.”

“This is not primarily an argument about what the law is. This is an argument in which the Justice Department, our federal government, is telling us what a man is and what a woman is. Something has gone wrong,” he concluded.

Related: Obama's Threat to Defund Schools Over Trans Bathroom Issue Violates Federal Law

Related: US Sues North Carolina Over Transgender Bathroom Law

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