WICHITA FALLS, Texas (CN) — Leading a 13-state legal charge against the Obama administration's directive on transgender students in public schools, Texas claims that Title IX bans discrimination based on a student's biological sex, not his or her gender identity.
Texas on Wednesday sought a federal injunction, and expedited treatment for it, to block the Obama administration from tying public school funding to schools' treatment of transgender students before schools open in August.
The motion is the latest development in a lawsuit Texas filed in late May.
Texas and 12 other states sued the U.S. Departments of Education, Justice and Labor and the Equal Employment Opportunity Commission. Two school districts, one in Texas and one in Arizona, joined as plaintiffs.
They challenge the May 13 directive ordering all schools that receive federal funds to classify students based on the gender they identify with, regardless of what's listed on their birth certificates.
Texas public schools stand to lose $5.1 billion federal aid in fiscal year 2017, which starts Sept. 1, if the policy clears the courts, Texas says in its request for an injunction.
Employers who refuse to let employees use the "intimate areas" of their choice also face legal liability under Title VII of the Civil Rights Act of 1964 under the new directive, the motion states.
Texas has sued the federal government 40 times since Obama took office in 2009, lawsuits that former Attorney General Greg Abbott, now governor, and his successor Ken Paxton, both Republicans, say were necessary to beat back government overreach into states' business.
Texas borrows from the legal playbook it used to block Obama's immigration policy changes, which a Supreme Court stalemate blocked from taking effect in June. Now Texas wants to block the transgender directive before the August start of the 2016-2017 school year.
As in the immigration lawsuit, Texas claims Obama is rewriting rules that are the exclusive realm of Congress, by expanding the "ordinary meaning" of "sex" in Title IX and Title VII to include gender identity.
"When Titles VII and IX passed, virtually every dictionary definition of 'sex' referred to physiological distinctions between females and males, particularly with respect to their reproductive functions.
"Clearly, a biologically grounded meaning of 'sex' is what Congress had in mind when it enacted Title IX," plaintiffs' attorney Austin Nimocks with the Texas Attorney General's Office says in the 39-page motion.
President Richard Nixon signed Title IX into law in 1972.
Texas claims the Obama administration's plans to withhold funding from noncompliant school districts is "unconstitutional coercion," the "proverbial 'gun to the head'" that imperils 20 percent of its public education budget for the next fiscal year.
Days after the feds issued the decree, Paxton went looking for a sentimental face to put on the state's lawsuit, the Texas Tribune reported on May 26.
He persuaded Harrold Independent School District Superintendent David Thweatt and the school board to establish policies that contradict the federal directive.
"Therefore, on May 23, 2016, at a regular meeting, school board members of Harrold ISD adopted in writing its longstanding policy limiting multiple occupancy bathrooms and locker rooms to usage by persons based on their biological sex," the motion states.
Texas sued two days later; the school district is the second-named plaintiff.
Harrold ISD is in Wilbarger County on the Oklahoma border. All its students, pre-K through 12th grade, attend classes in the same building, with different bathrooms for boys and girls and no "single user" bathrooms that would be ideal for transgender students, the motion states.
Texas claims the federal directive "would force the district to sanction unsafe spaces," ostensibly because it would open the door for students parading as transgender to commit "sex crimes" against their peers in locker rooms and bathrooms and expose the district to lawsuits from parents.
The directive is also untenable for Harrold ISD from a financial standpoint, Texas claims.
"From Harrold ISD's point of view, reconfiguring all of its intimate facilities into 'single user' facilities is the only possible way to safely provide both sexes with simultaneous access to intimate facilities. But Harrold ISD does not have the money to construct 'single user' restrooms," the motion states.
The case is before U.S. District Judge Reed O'Connor, a President George W. Bush nominee.
To get the case resolved before the next school year, the parties agreed to an expedited schedule.
The United States will respond to Texas' motion by July 27 and hearings are scheduled for Aug. 8 or 9, if necessary.
The other plaintiff states are Alabama, Arizona, Oklahoma, Louisiana, Wisconsin, West Virginia, Tennessee, Maine, Utah, Georgia, Mississippi and Kentucky.
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