Multiple states go to court over Obama's transgender directive

Last Updated May 25, 2016 7:45 PM EDT

AUSTIN, Texas -- Texas and 10 other states are suing the Obama administration over its directive to U.S. public schools to let transgender students use the bathrooms and locker rooms that match their gender identity.

The lawsuit announced Wednesday includes Oklahoma, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Arizona, Louisiana, Utah and Georgia. The challenge, which asks a judge to declare the directive unlawful, follows a federal directive to U.S. schools this month to let transgender students use the bathrooms and locker rooms that match their gender identity.

The Obama administration has "conspired to turn workplace and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights," the lawsuit reads.

"Simply put, the Obama administration is creating new law outside the bounds of the Constitution, making the kind of changes only Congress can make," Republican Texas Attorney General Ken Paxton told reporters.

Many of the conservative states involved had previously vowed defiance, calling the guidance a threat to safety while being accused of discrimination by supporters of transgender rights. U.S. Attorney General Loretta Lynch has said "there is no room in our schools for discrimination."

Texas' lieutenant governor has previously said the state is willing to forfeit $10 billion in federal education funds rather than comply. The directive from the U.S. Justice and Education departments represents an escalation in the fast-moving dispute over what is becoming the civil rights issue of the day.

Pressed about whether he knew of any instances in which a child's safety had been threatened because of transgender bathroom rights, Paxton said "there's not a lot of research." He said his office has heard from concerned parents, but didn't say how many, and said he did not meet with any parents of transgender students before filing the lawsuit.

In a statement, Justice Department Civil Rights Division spokeswoman Dena Iverson said: "While the Department will review the complaint, the federal government has strong legal foundations to uphold the civil rights of transgender Americans."

Two school districts joined the states in the lawsuit: one is the tiny Harrold school district in North Texas, which has 100 students and passed a policy this week requiring students to use the bathroom based on the gender on their birth certificate. Superintendent David Thweatt said his schools have no transgender students to his knowledge but defended the district taking on the federal government.

"It's not moot because it was thrusted upon us by the federal government," Thweatt said, "or we were going to risk losing our federal funding."

The question of whether federal civil rights law protects transgender people has not been definitively answered by the courts and may ultimately be decided by the Supreme Court. But schools that refuse to comply could be hit with civil rights lawsuits from the government and could face a cutoff of federal aid to education.

The guidance was issued after the Justice Department and North Carolina sued each other over a state law that requires transgender people to use the public bathroom that corresponds to the sex on their birth certificate. The law applies to schools and many other places.

Supporters say such measures are needed to protect women and children from sexual predators, while the Justice Department and others argue the threat is practically nonexistent and the law discriminatory.

Texas was a likely candidate to rush to the courthouse first. Texas Gov. Greg Abbott sued the Obama administration more than two dozen times when he was attorney general, a pace that Paxton has kept up since taking office last year.