By Logan Lawson
The nationwide battle over rights for transgender people has made its way to Nebraska.
Nebraska is one of 10 states that have filed a lawsuit in U.S. District Court for Nebraska against the U.S. Department of Education and the U.S. Department of Justice. The lawsuit challenges the recent mandate changing current Title IX and Title VII law regarding how schools assign students to showers, locker rooms and restroom facilities.
The other nine states involved are Michigan, Ohio, Arkansas, Kansas, Montana, North Dakota, South Carolina, South Dakota and Wyoming. All of the states involved fall under the jurisdiction of either Title IX, Title VII or both of the laws in different ways.
According to court documents obtained by the Boone County News, the lawsuit, filed by Nebraska Attorney General Doug Peterson, challenges the May 13 “Dear Colleague Letter” issued jointly by the Department of Education and Department of Justice. In the letter, the two departments outline new obligations that they seek to impose under Title IX and Title VII in allowing students at federally funded schools to allow individuals access to all showers, locker rooms and restrooms based on the gender they self-identify as, regardless of their birth gender.
According to the Department of Justice, Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees, including federal, state and local governments.
Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.
The letter states that allowing students to use private facilities consistent with their gender identity, regardless of their birth sex, is “a condition of receiving federal funds.” This means schools that choose not to comply with the new obligations risk losing funding which, according to the Department of Education, amounts to 9.3 percent of the average state’s total revenue for public schools.
The 10 states involved in the lawsuit allege the new obligations circumvent state and federal laws already in place allowing schools to separate facilities by sex without using the proper legislative process to change the laws.
According to court documents, the actions redefine the meaning of “discrimination” and “sex,” something the two departments do not have the authority to do. Both the Department of Education and the Department of Justice fall under the executive branch of the government, which is given the constitutional responsibility to carry out and enforce federal laws, not create them.
The states also argue that discrimination does not occur when a protected characteristic, in this case a person’s sex, is not taken into account for determining how someone is treated. Sex is defined in Title IX and Title VII as male or female.
The lawsuit is the most recent action taken in reaction to the current administration’s stance on gender identity. The administration made their stance clear when the Department of Justice sued the State of North Carolina in May for their law requiring individuals to use bathrooms corresponding to their sex according to their birth certificate. The law and the succeeding lawsuit have spurred protests across the country.
A nearly identical lawsuit to Nebraska’s has been filed in federal court in Texas as well by 13 other states. The two lawsuits, along with various individual cases, look to set precedence for future cases regarding gender identity.