Schuette sues to block transgender school ‘directive’

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Michigan Attorney General Bill Schuette on Friday joined nine other states in filing a federal complaint seeking to block the Obama administration’s new school “directive” for transgender students, including inclusive bathroom and locker room policies.

But Gov. Rick Snyder did not want the state government to be party to the lawsuit and has not taken a public position in the national transgender school debate, a further sign of the differences in priorities between the fellow Republican elected officials.

The lawsuit, filed by Nebraska Attorney General Douglas Peterson, requests declarations that the new rules, regulations or guidance are unlawful and seeks a permanent injunction prohibiting the federal government from implementation or enforcement.

The recent policy recommendations are technically voluntary but tied to the threat of federal funding penalties for noncompliance, which could be considered sex discrimination based on gender identity.

“The Obama administration’s unilateral directive on education policy and Title IX funding is yet another example of federal overreach,” Schuette said in a statement.

“The manner in which this directive was made ignored the essential role of parents in making decisions about their children, omitted participation of local schools, violated the Administrative Procedures Act and bypassed Congress’ constitutional responsibilities.”

Other states party to the suit are: Arkansas, Kansas, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.

Schuette joined the complaint in his official capacity as attorney general representing “the people of the state of Michigan,” as opposed to the state government.

Snyder “opted not to have the state as party in this lawsuit,” said spokeswoman Anna Heaton. “Michigan faces many other important issues at this time that we are focused on.”

Michigan State Board of Education President John Austin, a Democrat who is working to develop state-level guidance recommendations for schools and transgender students, was quick to criticize Friday’s court action.

“It is unfortunate that, as he did with gay marriage, Bill Schuette is on the wrong side of history and wants to represent Michigan as a state inhospitable to our LGBT citizens,” Austin said in a statement.

“Transgender school children, as all children, deserve dignity, respect and the right to be acknowledged and accepted in school, so they can go about the business of getting a great education.”

Schuette, who defended the state’s constitutional ban on same-sex marriage to the U.S. Supreme Court, said the separate marriage issue has been settled and the new lawsuit is about “children and our schools.”

He also said he takes discrimination seriously, noting his OK 2 Say student tip hotline that is intended to reduce school violence.

The U.S. departments of Justice and Education on May 13 released a joint memo officials said was intended to provide educators with information to help ensure transgender students do not face sex-based discrimination in schools.

The Obama administration said transgender students should be able to access restrooms and locker rooms consistent with their gender identity unless those students request an individual-user option for privacy. School workers should also use pronouns and names consistent with the student’s gender identity, according to the “Dear Colleague” letter.

“The letter confirmed that the federal executive branch has formalized its new definition of the term ‘sex’ and threatened enforcement action against any of the more than 100,000 elementary and secondary schools that receive federal funding if those schools choose to provide students with showers, locker rooms, and restrooms designated by biological sex, consistent with one’s genes and anatomy,” the state attorneys general wrote in the new complaint.

The suit argues the Obama administration developed the rules “without observation of procedure,” including the failure to make a “regulatory flexibility analysis” available for public comment. Schuette said the administration violated the Administrative Procedures Act and bypassed Congress.

Michigan Republicans have introduced a series of bills in the state Legislature this year that would limit transgender bathroom access. Three legislators wrote to Schuette in May asking him to join the earlier Texas lawsuit and “provide guidance as to the legality of transgender bathrooms in Michigan.”

Steph White, executive director of the Equality Michigan advocacy group, said she was “disappointed but not surprised” that Schuette joined the federal case.

“These policies are based on a series of court rulings that have been ongoing for decades on how do we best enact civil rights protections for all people in America,” White said.

“Whether (Schuette) likes it or not, transgender kids exist and they have a right to their dignity and privacy, and this federal guidance helps achieve that goal.”

The new lawsuit is the second of its kind in response to the federal transgender policy guidance memo. Texas and 11 other states sued the Obama administration in late May.

joosting@detroitnews.com