Kansas will join in a lawsuit challenging the new federal demand that local schools accept the Obama administration’s expansion of Title IX to cover gender identity or lose federal funding, Attorney General Derek Schmidt said today.
The decision to join Kansas in a direct challenge to the federal action comes after a federal appeals court in Virginia yesterday declined to reconsider its earlier ruling that upheld the legal reasoning behind the administration’s policy. In that case, Grimm v. Gloucester County School Board, a transgender student sued a local school board over its requirement that students use the bathroom associated with their biological sex, not their gender identity. Although the district also made a private, unisex bathroom available for any student’s use, the Fourth Circuit Court of Appeals held that was insufficient to satisfy the Title IX prohibition on “discrimination based on sex.”
“I had hoped the Virginia case could quickly resolve this issue by confirming the longstanding traditional understanding that Title IX applies to biological sex, not gender identity,” said Schmidt, who had filed a brief in the Virginia case in support of the school board. “But today’s refusal by the appeals court in Virginia to reconsider its earlier flawed decision means our only option is to pursue a more direct challenge to the Obama administration’s unlawful efforts to unilaterally rewrite Title IX.”
Title IX of the Education Amendments of 1972 prohibits discrimination in education “on the basis of sex.” Earlier this year, the Obama administration announced that it was reinterpreting “on the basis of sex” to include gender identity in addition to biological sex.
Schmidt said he has consulted with Governor Sam Brownback, who favors joining litigation in this matter, and now will join Kansas as a plaintiff in a direct legal challenge to the federal action. He said he is reviewing whether to join the 11 states, led by Texas, that filed suit on the subject last week or file a separate similar lawsuit shortly.
“The bottom line is that Kansas will challenge the Obama administration’s attempt to unilaterally rewrite Title IX in an unprecedented way that further expands federal power,” said Schmidt, who noted his office is in touch with numerous other states to coordinate legal strategy on this matter. “In our federal system of government, not every decision needs to be handed down from Washington, and this is a matter best left to state or local authorities, including school boards, as it traditionally has been – and as the law requires.”