East High bathroom

East High School freshman Aden Haley-Lock said the school's all-gender restroom provides more sensitive accommodations than traditional bathrooms.

AMBER ARNOLD — State Journal

Wisconsin and 10 other states sued President Barack Obama’s administration Wednesday over guidance directing schools to let students use bathrooms and locker rooms that match their gender identities.

The suit alleges the Obama administration has “conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment.”

It asks the federal court to declare the guidance unlawful, block enforcement of it and prevent the administration from issuing new guidance.

The guidance from the U.S. Departments of Justice and Education reiterates 2014 guidance released by the U.S. Department of Education’s Office for Civil Rights that said the federal anti-discrimination law known as Title IX covers discrimination on the basis of gender identity. The recent guidance threatens to withhold federal funding if school districts do not comply.

Wisconsin Attorney General Brad Schimel said in a statement that after talking to Gov. Scott Walker, he decided to join the lawsuit — led by Texas — to challenge the administration’s “latest power grab.” The suit was filed in a federal court in Texas on behalf of Alabama, West Virginia, Tennessee, Arizona, Maine, Oklahoma, Louisiana, Utah, Georgia, Wisconsin and two school districts, in Texas and Arizona.

“President Obama’s attempts to re-write the laws of our country without congressional consent and approval are not going to be tolerated by the state of Wisconsin,” said Schimel.

Walker granted Schimel’s request to join the lawsuit “as this is yet another example of President Obama’s unlawful use of executive power,” Walker spokesman Tom Evenson said.

Evenson said the governor believes the decision of whether to set gender restrictions on school bathrooms or locker rooms should be made by local school districts and not the federal government.

Supporters of the federal government’s approach characterized the lawsuit as moving Wisconsin in the wrong direction.

“I don’t think it’s a social experiment at all. I think it’s schools being responsive to the needs of students and families just as they always have been,” said Brian Juchems, senior director of education and policy at GSAFE, which advocates on behalf of transgender people. “Having people in these positions challenge a student’s right to feel safe in a school definitely communicates their attitudes and opinions toward transgender students.”

Juchems said school districts have been seeking guidance on the issue from the federal government for years as more transgender students assert themselves and as school districts across the country face lawsuits from transgender students alleging the environments in their schools were discriminatory by not having bathrooms or locker rooms associated with their gender identity available.

U.S. Rep. Mark Pocan, D-Black Earth, said in a statement the lawsuit is “an effort to advance an antiquated ideology.”

Juchems said Schimel’s argument is similar to one that was used against allowing same-sex marriage in Wisconsin.

Wisconsin bill failed

The lawsuit comes after a legislative session during which a bill co-authored by Rep. Jesse Kremer, R-Kewaskum, that would set gender restrictions on school bathrooms and locker rooms failed to get traction. Kremer hopes to bring the legislation back.

Evenson said Walker would evaluate such a bill if it ever gets to his desk.

On Wednesday, Kremer and bill co-author Sen. Steve Nass, R-Whitewater, said because Walker signed laws criminalizing taking photos of women’s anatomy without their knowledge and parental use of nude images or videos of children for commercial use or sexual gratification and a law making it easier for state investigators to find the IP address of computers containing child pornography, Walker should support a bill setting gender restrictions on bathrooms and locker rooms.

“How, then, are we to turn a blind eye when children with different anatomy will be allowed to change in an open locker room within mere feet of one another – something that is potentially disorderly conduct or indecent exposure?” Kremer and Nass said in a joint statement.

The original bill would have set a statewide standard for bathroom use in Wisconsin schools. As it stands, schools are free to establish their own policies.

Wisconsin’s participation in the lawsuit doesn’t prohibit state schools from following the federal guidance. Schools could lose federal funding if they’re found not to be in compliance.

If all 424 school districts opted not to comply, at least $877.6 million of federal funding that is expected to come through the state Department of Public Instruction next school year would be lost.

The lawsuit said the states involved “stand behind the singular principle that the solemn duty of the Federal Executive is to enforce the law of the land, and not rewrite it by administrative fiat.”

Schimel also said the new guidance conflicts with state law, which prohibits discrimination in schools on the basis of “sex, race, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation, or [disability].”

“Wisconsin has not chosen to prohibit discrimination based on gender identity in our schools,” Schimel said. “Imposing a new federal standard on top of our state’s own discrimination policy would undermine our state’s sovereign choice in how to prohibit discrimination in schools.”

N.C. law led to guidance

The federal guidance was issued after the Justice Department and North Carolina sued each other over a state law that requires transgender people to use the public bathroom that corresponds to the gender on their birth certificate. The law applies to schools and many other places.

Schimel called the directive a “new policy” that “conflicts with the plain language of Title IX, and is therefore an unlawful interpretation. Title IX does not prohibit ‘gender identity’ discrimination, but sex discrimination.”

Wisconsin Schools Superintendent Tony Evers said discussions about accommodations for transgender students are best held at the local level.

“However, the federal Title IX guidance is an important component of those ongoing discussions. At the end of the day, we have an obligation to ensure all students feel safe and can access to the same educational opportunities as their peers,” Evers said in a statement.

The Associated Press contributed to this report.

• Americans evenly split on transgender bathroom issue, poll says. A6

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Molly Beck covers politics and state government for the Wisconsin State Journal.