Dana Ferguson, and Mark Walker

Argus Leader

South Dakota is set to join a coalition of a dozen states in a lawsuit against the Obama administration over its guidance on school bathroom policies for transgender students.

Attorney General Marty Jackley said he intends to challenge the Department of Education's "dear colleague" letter sent to schools last month. The letter said schools should allow transgender students to use bathrooms based on their gender identity.

Jackley in a statement Tuesday said the issue should be handled at a local level and, in his opinion, federal law can't direct school districts.

"As Attorney General it was and remains my hope that our country and state can find a solution to the transgender concerns without forcing children of the opposite sex into the same bathrooms and locker rooms," Jackley said in a statement. "The President's attempt to require children of opposite sex to share locker rooms and bathrooms under the threat of lawsuit and withholding of education funding is a one size fits all solution that goes beyond his constitutional authority."

The department, along with the U.S. Department of Justice, maintain that requiring transgender students to use same-sex facilities violates Title IX, the 1972 law that prohibits discrimination based on sex.

Jackley was unable to comment Tuesday due to travel.

Texas has taken the lead on the lawsuit with governors from Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, West Virginia, Wisconsin and Utah also supporting the action. Mississippi also intends to join the challenge.

Jackley has previously said the state needs a policy in place to require transgender students to use bathrooms, locker rooms and showers rooms that match their biological sex at birth, rather than their gender identity.

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The state Legislature considered a similar bill and came short of overriding Gov. Dennis Daugaard's veto on the measure that would've required transgender students that didn't want to use facilities based on their biological sex to submit a request to their school for a "reasonable accommodation."

Daugaard vetoed the measure in March, saying schools can make decisions at the local level on how they can handle transgender students. He also said the measure would have also created legal liability for the state's schools by forcing them to adopt policies that counter recent interpretations of federal discrimination law.

Schools must allow transgender bathrooms, Department of Education says

But Daugaard's Chief of Staff Tony Venhuizen said when the administration sent the "dear colleague" letter that the federal guidance was an overreach by the Obama administration.

Heather Smith, executive director of the American Civil Liberties Union (ACLU) of South Dakota, in a statement said that politicians shouldn't make the rights of transgender people an issue over which they can posture.

"There should now be absolutely no question as to what schools in South Dakota need to do to ensure they are upholding their obligations under federal civil rights law regarding the treatment of transgender students,” Smith said. “The federal guidance is simply providing schools with clarity as to the legal obligations that they already had under Title IX.”

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Transgender bathroom letter won't change S.F. policy