Stall Tactic: Arizona Attorney General Joins Transgender Bathroom Battle

Arizona Attorney General Mark Brnovich waded into the nation's tumultuous transgender-bathroom fray, announcing Wednesday that Arizona is one of 11 states with public officials suing the Obama administration regarding recent guidelines on how public schools should treat transgender students.

The lawsuit, brought in U.S. District Court in Texas, claims the administration exceeded its authority earlier this month, when the U.S. Department of Justice and the U.S. Department of Education issued an advisory letter to schools receiving federal funding, stating that the law banning discrimination based on sex applies to discrimination based on "gender identity."

Schools were warned that students must be allowed access to bathrooms and showers according to an individual's "internal sense of gender," even if that does not comport with a student's biological sex. To do otherwise risked creating a "hostile environment" for transgender students, the directive said, and the hypothetical loss of federal funds under Title IX of the Education Amendments of 1972, which forbids sex discrimination in "any education program or activity" that receives federal money.

According to the lawsuit, the plaintiffs see the guidelines as a "gun to the head" that will force "more than 100,000 elementary and secondary schools" to undergo a "seismic shift" in policy by redefining a person's sex according to personal preference rather than biology.

The 10 other states involved in the suit are Alabama, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

In a press release, Attorney General Brnovich said his office is representing the Arizona Department of Education in the matter because he wants to keep the Obama administration out of kids' bathrooms.

"President Obama has no business setting locker room and restroom policies for our schools," Brnovich states. "Deciding how to protect our children and preserve their privacy, while balancing these complicated issues, is best done locally and not by some knee-jerk decree from Washington."

Reached by phone, Brnovich sounded somewhat less truculent than in his press release.

"This is a very complex problem that doesn't have an easy solution," Brnovich explained. "But the president won't even let us try to find a middle ground that, even if imperfect, meets the needs of all. No solution is perfect, but to dictate an extreme and unworkable solution without legal authority is definitely not the answer."

The AG said he felt he had to act because the hundreds of millions of dollars allotted to the state in aid for education might be at risk if districts are found to be out of compliance with the directive.

Steve Kilar, a spokesman for the ACLU of Arizona, isn't buying Brnovich's line. Kilar says the lawsuit is a reach for a couple of reasons: one, because the Obama administration hasn't denied funding or directly threatened to do so; and two, because the U.S. Supreme Court has ruled that states may only sue over final rules, while the advisory letter is simply guidance.

"This case will probably not survive very long," said Kilar. "It's not based in any actual factual scenario."

In an interview with New Times, Angela Hughey, president of One Community, an Arizona-based LGBT-advocacy group, agreed with Kilar. Calling the suit "a waste of taxpayer money,Hughey chided Brnovich for backing an action that targets "some of the most vulnerable Arizonans: transgender students."
New Times asked Hughey about the lawsuit's claim that the Obama administration's new interpretation of Title IX allows a student to choose "one gender identity on one particular day or hour, and then another one the next."

Hughey called the claim "baseless." Gender identity, she said, is not a matter of whim, but rather "how you present your true identity on a daily basis."

The suit also mischaracterizes the nondiscrimination ordinance recently passed by the city council of Charlotte, North Carolina, claiming that the ordinance required that "every government and business bathroom and shower be simultaneously open to both sexes," and that the city had "outlawed the right to maintain sex intimate facilities...."

In fact, the city had merely added gender identity and gender expression to a list of protected characteristics, along with sex, race, and age.

Notes an explanation of the ordinance on the City of Charlotte's website:

The [nondiscrimination] ordinance does NOT require the elimination of separate men’s and women’s facilities, and does not require a business to provide new or special restroom facilities. However, a business may not prohibit a transgender person from using the restroom or locker room consistent with the gender identified or expressed by that person.... Restroom facilities designated and signed for males or females are permissible and do not violate the ordinance.
Contrary to the lawsuit's assertion, it was the North Carolina legislature that resorted to draconian bathroom measures. In voiding Charlotte's ordinance this past March, the state mandated that restrooms for more than one occupant in schools and public facilities must be designated as single-sex.

The Department of Justice has sued North Carolina over the now-infamous House Bill 2, claiming that it violates Title IX and other federal laws.

One of the bugbears for those who oppose allowing transgender individuals to use bathrooms according to their gender identity is the possibility that a male sexual predator may gain entry to a women's restroom by pretending to be a transgender female.

Angela Hughey says there's no evidence to back up such a contention. By her reckoning, more than 200 municipalities and 17 states have adopted "transgender-inclusive ordinances," and there has been no uptick in instances of predatory behavior. (Five of those municipalities, Hughey says, are in Arizona: Phoenix, Tucson, Flagstaff, Sedona, and Tempe.)

Brnovich himself admitted in his conversation with New Times that it was his understanding that some Arizona school districts already have been making accommodations for transgender students. And there is some evidence to support this.

Craig Pletenik, a spokesman for Phoenix Union High School District, which serves more than 26,000 students, told New Times that transgender kids are covered in the district's nondiscrimination policy, which includes gender identity and gender expression.

In 2014, Arizona's second-largest school district, Tucson Unified, with more than 49,000 students, updated its nondiscrimination policy to include gender identity, says TUSD spokeswoman Stefanie Boe.

That said, the largest school district in the state, Mesa Public Schools, with more than 64,000 students, has no formal policy regarding transgender students, according to MPS spokeswoman Heidi Hurst.

Hurst told New Times in an e-mail that MPS has been handling the issue on a case-by-case basis, "balancing the needs of the student with those of the school community." She provided a link to the school's nondiscrimination policy, which makes no specific reference to transgender students. Hurst also sent New Times the district's official statement on the Obama administration's guidelines, which says the "district is conducting a legal review to provide direction to our organization regarding these regulations."

So it seems possible that the Obama administration's letter of guidance may end up encouraging MPS to update its nondiscrimination policy.

The Arizona Department of Education, meanwhile, has no statewide policy to protect transgender students, and that's the way the ADE's boss, Superintendent of Public Instruction Diane Douglas, likes it.

Douglas teamed up with Brnovich on the lawsuit, and is quoted in the Attorney General's press release as calling the Obama administration guidelines "insulting and, quite frankly, intolerable," and stating that Arizona students "deserve a safe environment that is free from bullying and discrimination, regardless of their gender identity."

Evidently Arizona's students don't deserve that "safe environment" enough for Douglas to write up some state guidelines to protect transgender kids. ADE spokesman Charles Tack told New Times that ADE has no such policy, by design.

"To be honest, our superintendent has no interest in there being a state policy," said Tack. "She would see that as no better than what the federal government is trying to do with its policy."
KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons