Dana Ferguson

dferguson@argusleader.com

South Dakota joined nine other states Friday in filing suit against the Obama administration for overstepping its executive authority in bringing a blanket transgender bathroom policy.

The complaint filed in a federal district court in Nebraska contends that the U.S. Departments of Education and Justice went too far in creating a policy that requires schools to allow transgender students to use bathrooms, locker rooms and shower rooms based on their gender identity.

In their "Dear colleague" letter in May, the departments said schools that don't comply with the policy would be at risk of losing federal funding granted under Title IX, a federal law that prohibits discrimination based on sex.

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But gender identity shouldn't be classified as sex, the attorneys general from Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and Wyoming wrote in their complaint. The attorneys asked that the court revoke the guidance as it is "arbitrary and capricious."

"Plaintiffs stand united behind the constitutional principle that it is the duty of congress to legislate, while it is the duty of the executive branch, including its various federal agencies, to administer and enforce the laws that congress enacts," they wrote in their complaint.

Attorney General Marty Jackley said he hopes lawmakers can find a solution to transgender bathroom concerns, but doesn't believe President Barack Obama has the executive authority to require schools to allow transgender students to use certain facilities.

"The president's mandate or directive that children of opposite sex must be required to share locker rooms and bathrooms under the threat of lawsuit and withholding of education funding is a solution that goes beyond his authority," Jackley said in a statement. "I am therefore joining other attorneys general in the Nebraska litigation to clarify that federal law cannot mandate that children of opposite sex be required to share locker rooms and bathrooms."

Civil rights and LGBT advocacy groups have opposed the challenge, saying it constitutes discrimination against the LGBT community.

Terri Bruce, a transgender man and advocate from Rapid City, said he was disappointed in Jackley's decision to join the lawsuit and afraid of the possibility of a transgender bathroom bill re-emerging in the Legislature.

"He's saying that he doesn't agree with the federal government and that it was an overreach, but it doesn't feel to me as a transgender person that this is an issue about government overreach. It's about transgender lives. It's about trying to remove transgender people from the narrative of our culture," Bruce said.

Read the complaint here:

Complaint against Obama administration

Follow Dana Ferguson on Twitter @bydanaferguson, call (605) 370-2493 or email dferguson@argusleader.com

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