Arkansas, joined by nine other states, filed suit against the federal government over a directive issued by President Barack Obama's administration in May that cautioned states on how to accommodate the needs of transgender students.
The suit, filed in federal court in Nebraska, adds Arkansas to an ongoing legal fight. Nearly two dozen states have filed suit against the U.S. Department of Education and Department of Justice over a "guidance" letter sent to state officials that said in order to be eligible for federal funding, schools should allow transgender students to use restrooms by the gender they identify with and not by their biological sex.
On Friday, Arkansas Attorney General Leslie Rutledge said the Obama directive is an attempt to "rewrite" current law that allows schools to accord restroom and locker-room privileges by sex.
"The Obama Administration is using intimidation tactics in an attempt to force local schools to adopt a radical social policy that raises serious safety concerns for school-age children," Rutledge wrote. "From a young age, children are taught not to be bullies, yet that is exactly what the federal government is doing by threatening the loss of funding if schools do not comply with this directive -- a directive that unlawfully ignores the role of Congress."
When asked if refusing to allow transgender students to use the restrooms that correspond with their identified gender was "bullying," Rutledge spokesman Judd Deere said Rutledge joined this second legal challenge to the directive to protect young students.
"We're talking about kindergartners, first-graders, middle-schoolers, we're talking about young-age children here who are being used as pawns by the federal government to issue this social policy that it wants to push on school-age children," Deere said Friday.
Earlier this year, the city of Charlotte, N.C., passed an anti-discrimination ordinance that included language permitting transgender people to use public restrooms by the gender with which they identify.
That action was met with the passage of House Bill 2 by North Carolina lawmakers in late March, the so-called bathroom bill that explicitly forbids individuals from using public facilities that do not correspond with their biological sex.
The law was met with opposition from the Department of Justice and U.S. Attorney General Loretta Lynch, who called the law discriminatory and out of compliance with the nation's civil-rights laws.
On May 9, the federal government sued North Carolina, stating that the new law violated Title VII and Title IX of the Civil Rights Act, which protect citizens from discrimination based on race, religion, color, or sex.
On May 13, federal education and justice officials issued a "Dear Colleague Letter" to the states informing them that schools are to treat transgender students by the gender they identify with and also offered guidance on how to accommodate transgender students.
By the end of May, Texas led a group of 13 states in a challenge of the directive.
Although the letter was guidance and didn't carry the weight of law, state attorneys from Arkansas and the other states that filed suit Friday argued that the letter "bluntly" put hundreds of thousands of schools at risk of losing federal funding if they fail to follow a rule that is unjustly being imposed.
The complaint argues that there is no mention of "gender identity," only "sex," in the Civil Rights Act and that recent legislative attempts to amend it to include "gender identity" were expressly defeated.
The directive from the Obama administration amounted to a "redefinition" of federal law and policy -- one that exceeded the executive powers' reach -- and violated federal rule-making laws, the 10 states say.
Congress, not the departments of Justice or Education, has the power for such a mandate, the suit says.
The suit asks that the Nebraska-based federal judge stay the implementation of the rules and find the actions of federal officials to be unlawful.
An attorney with the Arkansas chapter of the American Civil Liberties Union, Holly Dickson, said she was concerned that Rutledge filed suit over something that simply isn't an issue in Arkansas.
"It does seem to be tilting at windmills to affirmatively challenge the federal government, particularly when these standards aren't doing anything to harm anyone in the state of Arkansas. It's ill-advised," Dickson said. "We've been relying on the same law and same guidance for years in ensuring that those students' rights have been respected."
Dickson said her group has worked with several school districts over how to address the needs of transgender students and that there have been no "blowups" between students and administrators.
"This lawsuit is intended to allow schools and government officials to stigmatize and out transgendered youth who are already at great risk for bullying, harassment, crime," she said. "These students want to live in peace and privacy and they should be allowed to do so."
On Friday, Gov. Asa Hutchinson issued a statement saying the lawsuit was a necessary response.
"The federal government's guidance directly infringes on local control. No one is better suited to make the policy decisions that best meet the need of Arkansans than our state and local leaders," Hutchinson said. "This is a state's issue -- and in many cases, a nonissue -- that should be dealt with at the local level, not by an intrusive federal government's attempt at social engineering."
Neither Deere nor a spokesman from Hutchinson's office knew of any instances of districts being unable to accommodate transgender students.
Asked why Arkansas filed suit with nine other states in Nebraska while a parallel challenge was ongoing in Texas, Deere said it was in the state's interest to file its challenge in the 8th U.S. Judicial Circuit area, which includes Arkansas and Nebraska but not Texas.
Other states in the lawsuit besides Arkansas and Nebraska are Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.
With Friday's challenge, Deere pointed out, nearly half the states in the nation are pushing back against the Obama directive.
Metro on 07/09/2016