Texas Attorney General Ken Paxton is expected to announce the lawsuit against the Obama Administration at a press conference Wednesday afternoon. | AP Photo 11 states sue Obama over transgender bathroom directive

Nearly a dozen states filed suit Wednesday afternoon against the Obama administration for its directive to school districts on accommodating transgender student access to bathrooms and locker rooms.

Arizona, Alabama, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin are joining Texas in the federal court lawsuit — the latest salvo in a pitched battle over rights for transgender Americans.


“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” Texas Attorney General Ken Paxton told reporters Wednesday during a news conference in Austin, adding that more parties could join in on the suit. “Texas will continue to stand up to President Obama and his agencies whenever and wherever they attempt to circumvent the rule of law and ignore the voice of the people.”

The Justice and Education departments sent a letter to school districts across the country earlier this month notifying them that transgender students should be allowed to use bathrooms and locker rooms that align with their gender identity. While the move lacks force of law, the guidance declares sweeping protections for transgender students under Title IX, the federal law that prohibits sex-based discrimination in federally funded education programs and activities, as well as Title VII, which prohibits discrimination in the workplace.

The administration’s stance on Title IX has already sparked dueling lawsuits in North Carolina, with Republican Gov. Pat McCrory suing the Justice Department and DOJ countersuing. The conservative nonprofit Alliance Defending Freedom is also suing the administration and an Illinois school district over an earlier agreement permitting a transgender student who identifies as female to use a private changing area in the girl’s locker room. The group recently asked the court to issue a preliminary injunction to halt that agreement and the Obama administration’s guidance overall. A hearing in that case is set for May 31.

The plaintiffs in the suit filed Wednesday include not just the 11 states but also a host of top state officials and various schools districts. The parties joined together, the suit says, to “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.”

The suit targets the Obama administration and casts an extremely wide net, reflecting the far-reaching impact of the administration’s guidance on transgender rights. Named as defendants are the Departments of Education, Justice and Labor and the U.S. Equal Employment Opportunity Commission, as well as Education Secretary John B. King Jr., Attorney General Loretta Lynch and Labor Secretary Tom Perez, in addition to other leading officials.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” the suit charges.

Paxton said he was unsure of how much a case against the federal government would cost the states involved, but argued that “the cost of defending the Constitution is always worth it.” He also acknowledged that he’s prepared to fight all the way up to the U.S. Supreme Court.

Paxton conceded that he couldn’t provide specific examples of transgender students harming others in school settings, but argued that was the case because the directive is a novel one and hasn’t been fully implemented. He said the federal government didn’t follow proper protocol.

“It’s all about the federal directive. It’s not about a side issue or a side show,” he said of the suit. “It is simply a matter of telling the president of the United States, telling Department of Education, telling the Department of Labor, telling the EEOC that they don’t have the authority to just change law; that Congress really does matter and the Constitution is fundamental to how this process should work.”

Several of the states in the lawsuit announced Wednesday have already actively pushed back against bathroom access for transgender students. Maine Gov. Paul LePage, the state of Arizona, Texas, Utah and West Virginia have all filed briefs in the case of a transgender student seeking access to the boys' bathroom at his Virginia high school. A federal appeals court earlier this year upheld his right to access the bathroom that aligns with his gender identity, but LePage and those states are backing the school district’s petition for a rehearing.

Professor Carl Tobias, the Williams Chair in Law at the University of Richmond School of Law, said a legal challenge that brought together multiple states was “not a big surprise, given the pushback in the states.” The suit being filed in federal court in Texas is also somewhat expected, he said, because of recent litigation in the state over abortion restrictions passed by the legislature in 2013.

“Texas is sort of the central location for litigation these days, especially against the federal government,” he said, noting that the suit was filed in the state’s northern federal district, which is known to be conservative.

He said the administration’s guidance was ripe for strong legal challenges because President Barack Obama is essentially a lame duck.

“This won’t be over before the Obama administration is out of office,” he said. "It’s the end of the administration, and this stuff is likely to be challenged.”

The guidance calls on schools to treat transgender students based on their gender identity, even if it’s at odds with information on a student's education records or identification documents. It also reiterates that schools have a responsibility to provide a safe, nondiscriminatory environment for all students, including those who are transgender. Failure to comply with the directive poses a risk for states, which could face lawsuits from the Obama administration and potentially lose federal education funding.

Paxton had been hinting for days that Texas would wade into the culture war over transgender student rights.

In a joint statement filed last week with West Virginia and Oklahoma Attorneys General Patrick Morrisey and E. Scott Pruitt, Paxton suggested that the “significant guidance” creates more questions than answers, “just as it creates concerns among anyone who believes sex is a biological fact and not a personal preference.”

The top state legal officials also asked whether the guidance will impact federal funding. “As billions of dollars appear to be at stake based upon schools’ compliance with this guidance, the Obama Administration must be extremely clear about what is and isn’t allowed, and explain how their actions do not add requirements to the law, as their letter claims,” they wrote.

Earlier Wednesday, Michigan state Sen. Tom Casperson filed legislation that would require schools to provide transgender students with “reasonable accommodation,” which is defined in the bill as “one that does not impose an undue hardship on a school district, intermediate school district, or public school academy” and explicitly excludes restrooms, locker rooms and shower accommodations.