ST. LOUIS (CN) — Missouri and Arkansas’ attorneys general led a six-state coalition Tuesday challenging the Biden Administration’s changes to Title IX that they say would allow transgender athletes assigned male at birth to participate in women's sports.
Under an order by President Joe Biden, the department in April expanded the 1972 rule, which prohibits discrimination on the basis of sex, to include sexual orientation and gender identity.
The lawsuit, filed in the Eastern District of Missouri, claims the change is unconstitutional.
“Joe Biden is once again exceeding his constitutional authority, this time to put a radical transgender ideology ahead of the safety of women and girls,” Missouri Attorney General Andrew Bailey said in a statement. “As the father of a young daughter, I take this personally. The Biden Administration has threatened to hold federal funding hostage from any institution who rejects this unconstitutional and sexist rule.”
The officials say in the 62-page lawsuit that the Biden Administration rule requires states, schools, and universities to ignore biological sex in favor of self-professed gender identity.
Schools and other entities that refuse to comply could lose federal funding. It is set to take effect on Aug. 1.
Title IX was passed in 1972 and was designed to forbid discrimination based on sex in education. The new rules broadly protect against discrimination based on sex, sexual orientation and gender identity, but they don’t offer guidance around transgender athletes. The Education Department has promised a separate rule on that issue later.
The six attorneys generals, all Republicans, claim the new requirements could be interpreted to apply to sports, and would deny women their constitutional rights by making them compete against men.
“It robs young female athletes of opportunities,” Bailey said in his statement. “It forces schools and universities to allow men into women and girls' locker rooms, restrooms and shower facilities. It compels teachers, administrators, and even fellow students to use an individual’s preferred pronouns. And it subjects anyone who disagrees with President Biden’s view of sex to investigation and possible sanction. That contravenes Title IX’s plain language, and it violates the Constitution.”
A Biden spokesperson declined to comment on pending litigation but said in a statement: "As a condition of receiving federal funds, all federally funded schools are obligated to comply with these final regulations and we look forward to working with school communities all across the country to ensure the Title IX guarantee of nondiscrimination in school is every student’s experience.”
Transgender rights in sports have become a hot-button topic as the presidential political season ramps up.
The lawsuit, filed on behalf of a sophomore at Brookland High in Arkansas, echoes many of the Republican talking points in the debate.
“She uses the female-designated restrooms at her school and feels safe knowing that boys are not allowed to use the girls’ restroom,” the officials wrote in the lawsuit. “She does not want to use the restroom with a male, even if that male considers himself to be a female. If male students were allowed to use the female restrooms at her school, she would do her best to avoid any women’s restroom that a male could access.”
The plaintiff describes her concern in the complaint about changing and showering in the locker room, along with worries about out-of-town trips.
“If she and other female athletes are forced to compete against males, they would be at a competitive disadvantage due to the inherent physiological differences between female and male athletic capacities,” the officials wrote. “This will result in female athletes like A.F. being displaced from sports teams and competitions by male athletes.”
The attorneys general argue the rule is such a dramatic departure from established Title IX practices that it is difficult to summarize its full impact.
“However, a few things are clear,” the attorneys general wrote. “No state or recipient school can exclude a student from using the bathroom, locker room, or other private changing or showering space that aligns with that student’s self-professed gender identity (which they cannot attempt to authenticate), no matter the student’s sex. And though the final rule purports to leave considerations about athletics for a different rulemaking, it is clear that states cannot maintain laws that require eligibility for sports teams and competition to be based on an athlete’s sex.”
The officials add, “Finally, state laws that protect the rights of teachers and students to speak about gender and gender identity in ways that a student might view as offensive will be preempted.”
PROMO, the leading LGBTQ advocacy group in Missouri, opposes the lawsuit. PROMO spokesperson Robert Fischer said in a written statement that it is "deeply concerning" who this group of attorneys general consider equal under the law.
"These six states, who the attorneys general represent, all have laws which violate a person’s freedom to choose what health care they need," Fischer said in the statement. "Each of them have an abortion ban in place, with Missouri having the cruelest in the country. This was never about protecting women, women in sports, or women’s rights."
He added, "If it were, we’d be talking about actual dangers facing women today — repeated historical sexual violence from predatory coaches, access to equitable health care, pay inequities, and inequities in the levels of support women athletes receive."
Attorneys general from Iowa, Nebraska, North Dakota and South Dakota joined Missouri and Arkansas in the lawsuit.
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