Families sue government for redefining Title IX

Fifty-one families from the Chicago suburbs are saying “enough” to the Obama administration forcing schools to let boys and girls who identify as the opposite sex use the restrooms of their choice.

The families, represented by Alliance Defending Freedom (ADF) and the Thomas More Society, filed a suit against the U.S. Department of Education in federal court today. The lawsuit claims the department is “continuing to trample students’ privacy and other constitutional and statutory rights” in its enforcement of Title IX, a law that prohibits gender discrimination in federally funded schools.

In April 2014, the Department of Education’s Office of Civil Rights (OCR) ruled Title IX protections cover discrimination on the basis of gender identity as well as biological sex. Since then, schools around the country have faced threats of having their federal funding revoked if they don’t meet the demands of transgender students.

One such case arose in Palatine, Ill., a suburb of Chicago, between Township High School District 211 and a biologically male teen who lives as a girl. The district calls the student by a female name and pronouns, allows the student to play on girls’ athletic teams, and lets the student use female bathrooms. But the student, who has not been identified, could not access the girls’ locker rooms and had to change clothes for PE class and other activities in a separate bathroom.

The school district put up privacy curtains in the girls’ locker room and offered to let transgender students change there if they undressed behind the curtains. But that was not enough for the OCR, which said the privacy curtains were discriminatory unless all girls were required to use them. The OCR threatened to revoke $6 million in federal funding from the district, which relented and allowed the student open access to girls’ bathrooms and locker rooms.

The lawsuit filed today describes the effect the policy has had on some of the female students at the high school: “The girls are afraid of having to attend to their most personal needs, especially during a time when their body is undergoing often embarrassing changes as they transition from childhood to adulthood, in a locker room or restroom with a male present.”

The suit describes how girls are avoiding using the restroom, wear their gym clothes under their school clothes to avoid undressing, and run to the opposite end of the school during passing periods to try to find empty restrooms.

Attorneys for the plaintiffs said the problems stem from the OCR’s redefining “sex” to include gender identity, something it had no authority to do.

Recently in Virginia, the 4th U.S. Circuit Court of Appeals ruled in favor of a transgender student in a similar case. But the court acknowledged in its ruling that it was only upholding the Department of Education’s interpretation of Title IX, something another administration or Congress could change.

“Not only may a subsequent administration choose to implement a different policy, but Congress may also, of course, revise Title IX explicitly to prohibit or authorize the course charted here by the department regarding the use of restrooms by transgender students,” Judge Henry Floyd wrote. The argument of the families in Palatine, though, is that the Obama administration never had the right to rewrite Title IX in the first place, so the court should declare its actions void.

“No government agency can unilaterally redefine the meaning of a federal law to serve its own political ends,” ADF legal counsel Matt Sharp said. “The Department of Education is exceeding what it is legally and constitutionally allowed to do. In fact, at least five other federal and state courts have rejected the DOE’s interpretation of Title IX.”

Just hours after the Illinois families filed their suit, the U.S. Justice Department cited the new Title IX interpretation in a warning to North Carolina over its recently enacted restroom law.

The law, known as HB2, protects public establishments from being forced to allow biological males and females to have access to restrooms and locker rooms of the gender with which they identify. Lawmakers passed HB2 in response to a city of Charlotte ordinance that made sexuality and gender preference protected classes under its civil rights laws.

Federal officials have given the state until Monday to pledge not to enforce the law. If Gov. Pat McCrory refuses, North Carolina could lose hundreds of millions of dollars in federal school funding.

The Justice Department also claims the law violates Civil Right Act protections against workplace discrimination.

“The state is engaging in a pattern or practice of discrimination against transgender state employees and both you, in your official capacity, and the state are engaging in a pattern or practice of resistance” of their rights, the letter said.

The Associated Press contributed to this report.