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Kansas To Sue Federal Government Over Transgender Policy

Axelboldt/Wikipedia public domain

Kansas will join legal action against a federal directive that public schools allow transgender students to use the bathroom that matches their gender identity.

Attorney General Derek Schmidt announced Wednesday that Kansas is challenging what he calls the Obama administration’s “unlawful efforts to unilaterally rewrite Title IX,” the 1972 federal law that bans discrimination in public schools on the basis of sex.

President Obama issued a guidance to public schools last month reflecting the administration’s stance that gender identity should also be covered under Title IX. Public schools could lose federal funding if they don’t comply.

Kansas Gov. Sam Brownback tweeted that he supports Schmidt’s decision to join the litigation, writing that “[t]op-down reinterpretation of federal law rejects logic and prudence.” The governor had previously spoken out against the policy change, calling it “executive over-reach.”

Texas, joined by nearly a dozen other states, filed a lawsuit last week against the Obama administration over the directive. The plaintiffs include Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Utah, West Virginia, Wisconsin, the governor of Maine and the Arizona Department of Education.

Schmidt says he has been in touch with other states involved in the lawsuit to coordinate a legal strategy. Kansas will either join the existing lawsuit or file a separate, similar lawsuit.

“In our federal system of government, not every decision needs to be handed down from Washington, and this is a matter best left to state or local authorities, including school boards, as it traditionally has been—and as the law requires,” Schmidt wrote in a news release.

Kansas Senate President Susan Wagle of Wichita said earlier that she is drafting a resolution protesting the directive.

More from the AP:

Republican-led Kansas will challenge in court the Obama administration's directive that public schools allow transgender students to use the restrooms that matches their gender identity, the state's attorney general said Wednesday, although he has not yet decided whether to join a lawsuit by 11 other states or sue separately.

Kansas Attorney General Derek Schmidt made the announcement as the state Senate prepared to vote on a non-binding resolution condemning the Obama administration recommendation and calling on Schmidt to challenge it.

"In our federal system of government, not every decision needs to be handed down from Washington, and this is a matter best left to state or local authorities, including school boards, as it traditionally has been - and as the law requires," Schmidt said in a press release.

Schmidt said conservative Republican Gov. Sam Brownback also wants the state to fight the decree.

The resolution will be considered on the final day of the state legislative session as Kansas struggles to comply with a state Supreme Court ruling that the Legislature has failed to adequately fund poor public schools and gave the lawmakers until June 30 to respond. Opponents of the transgender resolution say it is a distraction from the urgent need to act on school funding.

The resolution urges the Republican-majority U.S. Congress to blunt the directive by passing legislation that protects privacy rights. It also encourages Schmidt to consider filing a lawsuit against the U.S. Departments of Justice and Education, which issued the order. Texas and 10 other states already have filed suit against the federal government over the directive.

Senate Majority Leader Terry Bruce, a Hutchinson Republican, said President Barack Obama "overstepped his bounds" by issuing a decree on what should be a state-level decision.

"I think that it's a distraction for the federal government to do it and it's also unconstitutional," Bruce said. The directive was the catalyst for the resolution, but his constituents also expressed dismay that the federal government was ignoring local control, he added.

Senate Minority Leader Anthony Hensley, a Topeka Democrat, said in a statement that the resolution is misguided.

"Republican legislators have once again failed to comply with their constitutional duty to fairly fund our schools," Hensley said. "If they truly concerned about keeping schools open in August, they should use the Sine Die (last day) session to appropriate $38 million for school funding equity rather than waste taxpayers' dollars on an election year charade over which bathroom students can use."

Equality Kansas, the state's leading LGBT group, held a rally Wednesday on the ground floor of the Kansas Statehouse to oppose the proposed resolution. Transgender activists and a few religious clergy called accessibility to restrooms a human right.

"Transgender people have been around for millennia. Contrary to popular conservative thinking, we've actually been going to the bathroom and using restrooms this whole time," transgender activist Sandra Meade said to applause.

Tom Witt, executive director of Equality Kansas, also rebuked legislators for using the final day of the session to focus on the federal directive instead of the school funding formula.

"I think that the priorities of our Legislature are completely skewed," Witt told the Associated Press.


Follow Nadya Faulx on Twitter @NadyaFaulx.

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Nadya Faulx is KMUW's Digital News Editor and Reporter, which means she splits her time between working on-air and working online, managing news on KMUW.org, Twitter, Facebook and Instagram. She joined KMUW in 2015 after working for a newspaper in western North Dakota. Before that she was a diversity intern at NPR in Washington, D.C.