On Wednesday Tennessee joined 10 other states in filing a lawsuit against the U.S. Department of Education and the U.S. Department of Justice regarding a “guideline” issued directing school systems to allow students to use the bathroom of the gender they identify with or risk losing their federal funding.
Tennessee Attorney General Herbert H. Slatery III announced on Wednesday that Tennessee would be joining with Alabama, Arizona, Georgia, Louisianna, Maine, Oklahoma, Texas, Utah, West Virginia, and Wisconsin in filing the lawsuit.
Slatery said the lawsuit is in direct response to recent actions taken by DOE and DOJ in connection with Title VII and Title IX.
In a joint letter referred to as the “Dear Colleague Letter” sent by the DOE and DOJ to school districts across the country, the DOE and DOJ redefined the term “sex” as a person’s sense of gender identity and placed federal funding at risk for schools whose facilities and programs do not comply with the new definition.
“The Executive Branch has taken what should be a state and local issue, under the Tenth Amendment, and made it a federal issue,” Slatery said. “Schools that do not conform under the new rules risk losing their federal funding.”
“This is yet another instance of the Executive Branch changing law on a grand scale, which is not its constitutional role,” he added. “Congress legislates, not the Executive Branch.”
Slatery said joining the other states in the lawsuit is an effort to preserve the rights of Tennessee and its residents.
“Our Office has consistently opposed efforts like this to take away states’ rights and exclude the people’s representatives from making these decisions, or at a minimum being able to engage in a notice and comment period under the Administrative Procedures Act (APA),” he said. “As the complaint describes, it is a social experiment implemented by federal departments denying basic privacy rights and placing the burden largely on our children, not adults. Sitting on the sidelines on this issue was not an option.”
In 1964, Congress enacted Title VII of the Civil Rights Act, making it illegal for employers to discriminate on the basis of race, color, religion, sex or national origin. Eight years later, Congress took it a step further with Title IX of the Education Amendments of 1972, expanding those protections to federally funded education programs.
“Title IX prohibits discrimination on the basis of “sex” – defined to be a biological category based principally on male or female anatomy,” Slatery said. “The Administration is incorrectly interpreting Title IX to include self-proclaimed gender identity.”
“By issuing this change as a ‘guideline,’ DOE and DOJ are sidestepping the APA and infringing on a legal territory reserved for the legislature,” he added. “Tennessee is initiating this lawsuit with the other states to contest the action for all of these reasons.”