A coalition of 20 US states has filed a lawsuit accusing the Biden administration of “changing the law” by ordering schools to allow transgender girls, who are biologically male, to compete in women’s sports teams.
The lawsuit was filed Tuesday by the attorneys general of 20 Republican-led states, led by Tennessee attorney general Herbert Slattery. The lawsuit claims an executive order issued by Biden in January, as well as two directives issued by the Equal Employment Opportunity Commission (EEOC) and the Department of Education, constituted an illegal attempt to bypass Congress and change federal law.
Biden’s executive order instructed each federal agency to review its policies to “Prevent and combat discrimination based on gender identity or sexual orientation”. Following the order, the EEOC and the Department of Education issued their own guidelines, which, in the case of the department, required schools and colleges to allow transgender women on women’s sports teams.
If a federally-funded school refuses to adhere to the rule or to allow a transgender student to use the bathroom of their choice, ministry guidelines say it can launch an investigation.
Biden’s order and the two subsequent memos were based on an interpretation of Bostock v. Clayton County, a Supreme Court case last year. In a 6-3 verdict, the court ruled that employers cannot fire employees “Simply to be homosexual or transgender”, noting that the Civil Rights Act of 1964 protections against “sex” discrimination also applied to “Sexual orientation” and gender identity.
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In the court decision, Judge Neil Gorsuch wrote that “We don’t pretend to address bathrooms, locker rooms or anything like that.” Still, dissenting justices Samuel Alito and Clarence Thomas predicted that the ruling would only be used for that, and the Biden administration has since proven them right.
Dissent also came from Justice Brett Kavanaugh, who argued that retroactive reinterpretation of civil rights law was not the job of the Supreme Court. “We are judges” he wrote, “Not members of Congress. Our role is not to make or change the law.
Slattery echoed those words on Tuesday when speaking about the lawsuit. “This case involves two federal agencies that are changing the law, which is the exclusive prerogative of Congress,” he said in a statement. “Agencies just don’t have that authority. But that didn’t stop them from trying.
The Democratic Party has so far failed to pass the Equality Act, an ambitious law that would in effect enshrine such protections for transgender people into law. With the Senate split 50-50 between the two parties, the law is unlikely to be passed anytime soon. In the meantime, any attempt to do it piecemeal, as in the case of the EEOC and the Department of Education, will meet Republican resistance and will likely be decided by the courts.
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