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Arizona joins other states to sue Biden administration over transgender protections

Twenty states, including Arizona, are suing the Biden administration to stop the enforcement of what they say is a “regulatory overreach” in federal guidelines that protect transgender individuals from discrimination at work and in school.

Leading the pack is Tennessee’s Republican Attorney General Herbert H. Slatery III, who said in a statement, “This case is about two federal agencies changing law, which is Congress’ exclusive prerogative.”

Those agencies are the Equal Employment Opportunity Commission and the U.S. Department of Education, both of which have issued guidance stating that, based on the U.S. Supreme Court’s decision in Bostock v. Clayton County, it is discriminatory to require transgender individuals to operate in accordance with their biological sex assigned at birth.

Slatery and others argue that interpretation is erroneous.

“These agencies also have misconstrued the Supreme Court’s Bostock decision by claiming its prohibition of discrimination applies to locker rooms, showers, and bathrooms under Title IX and Title VII and biological men who identify as women competing in women’s sports, when the Supreme Court specifically said it was not deciding those issues in Bostock,” Slatery said.

The complaint, filed in federal court in the Eastern District of Tennessee on Monday, claims the guidance “purports to resolve highly controversial and localized issues such as … whether individuals may be compelled to use another person’s preferred pronouns. But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”

Therefore, the attorneys general say, they are suing to prevent the agencies from “usurping authority that properly belongs to Congress, the States, and the people and to eliminate the nationwide confusion and upheaval that the agencies’ recent guidance has inflicted on States and other regulated entities.”

The lawsuit asks the court to declare the guidance “invalid and unlawful and to prohibit their enforcement.”

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“The lawsuit filed by Tennessee Attorney General Slattery is a contemptible attempt to undermine efforts to protect the most marginalized among us from discrimination,” said Alphonso David, president of the Human Rights Campaign, an organization that is currently suing Tennessee over its so-called bathroom bill.

“Transgender youth who, like their peers, simply want to feel safe at school, are under attack in statehouses across the country and this lawsuit only puts them at further risk,” David told Courthouse News. “Time and again, U.S. courts have held that federal laws prohibiting sex discrimination protect LGBTQ people, including Title IX of the Education Amendments of 1972. The Human Rights Campaign is confident that federal courts will affirm the analysis of the Biden Administration and safeguard the transgender community.”

States that have joined Tennessee include Alabama, Alaska, Arizona, Arkansas, Georgia,   Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia.

Last year, lawmakers in several states — many of which are plaintiffs in Monday’s lawsuit — introduced a record number of bills seeking to limit transgender rights, according to the American Civil Liberties Union.

But no state’s leaders have gone further than Tennessee's in enacting new laws targeting transgender people, the Associated Press reported in May. The state now faces at least two separate lawsuits challenging two of those laws.

In one case, the civil liberties union scored a tentative victory when a federal judge temporarily blocked a law requiring businesses to post signs letting patrons know if they allow transgender people to use the bathroom facilities that correspond with their gender identity. Violators would have faced penalties, including up to six months in jail.

In the second case, the Human Rights Campaign sued the state over a law that applies to public schools and opens schools to civil litigation if they accommodate transgender people who wish to use restrooms that correspond with their gender identity.

That law defines sex as a person's “immutable biological sex as determined by anatomy and genetics existing at the time of birth.”

Both laws that are challenged were referenced in Monday’s lawsuit as examples of the state maintaining “laws or policies that at least arguably conflict with the Interpretation” of federal guidelines.

“The agencies simply do not have that authority. But that has not stopped them from trying,” Slatery said in a statement. “All of this, together with the threat of withholding educational funding in the midst of a pandemic, warrants this lawsuit.”

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The lawsuit asks the court to declare the guidance 'invalid and unlawful and to prohibit their enforcement.'