A federal judge should not halt enforcement of Obama administration policies that advance protections for transgender students and workers under existing civil rights laws, according to a dozen states that will file a brief in federal court on Wednesday.
“The bottom line is that the federal guidance at issue here threatens no imminent harm,” reads a draft of the brief provided to BuzzFeed News.
The filing is led by Washington State Attorney General Bob Ferguson, whose brief adds that federal protections for transgender people are “strongly in the public interest.”
Ferguson elaborated on getting involved in the litigation in an interview with BuzzFeed News, explaining, “I think this case could go all the way to the Supreme Court, and I want to make sure the trial court has our perspective and the perspective of like-minded states.”
In May, officials in Texas and 10 other states sued the federal government over its interpretation of civil rights laws, taking particular offense with guidelines issued by the Department of Education that instruct schools to let transgender students use bathrooms that correspond with their gender identity.
The states followed up in June by asking the court to issue an injunction that suspends the federal regulations, arguing that they unfairly burden states and jeopardize safety.
Several weeks after Texas filed its lawsuit, another group of states, led by Nebraska, filed a similar lawsuit.
But in the amicus brief to be filed Wednesday in the Northern District of Texas, the 12 other states led by Washington — most of which have their own policies that ban discrimination on the basis of gender identity — will argue no such problems result from protecting transgender people.
Instead, the brief says, such polices protect transgender individuals from high rates of discrimination and violence.
“Contrary to Plaintiffs’ claims, our shared experience demonstrates that protecting the civil rights of our transgender friends, relatives, classmates, and colleagues creates no public safety threat and imposes no meaningful financial burden,” says the brief.
Washington State will be joined joined by California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont, and Washington, DC.
Speaking to claims made by Texas and other states in the original lawsuit, the brief to be filed Wednesday will say that "their allegations of safety risks are unsupported hyperbole, their claimed loss of federal funding is distant and avoidable, and their claims of massive renovation costs lack support in the law and the record.”
As such, the brief argues, Texas has not met the standards required for an injunction.
“Anyone whose civil rights are threatened need to have attorneys general standing up for them,” Ferguson said in discussing the reason he led this effort. “Right now, there is a lot of focus on transgender individuals, and it makes it all the more important to stand up for their civil rights. Tomorrow it may be someone else.”
For several years, the Obama administration has asserted that Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 — which ban discrimination on the basis of sex — ban gender identity discrimination, or anti-transgender discrimination, as a form of sex discrimination.
On May 13, the Education Department issued guidance instructing publicly funded education institutions to allow transgender students use facilities consistent with their gender identity in a wide range of settings, such as restrooms, dorms, and sports venues.
Likewise, in recent years, the Justice Department and the Equal Employment Opportunity Commission have contended in legal proceedings that transgender discrimination is barred in workplaces.