FL joins GOP lawsuit seeking to overturn Biden administration protections for transgender students

Rebekah Bruesehoff, a transgender student athlete, speaks at a press conference on LGBTQI+ rights, at the U.S. Capitol on March 08, 2023. (Photo by Kevin Dietsch/Getty Images)

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Republican State Attorney General Ashley Moody has enlisted Florida in multi-state litigation challenging new Biden administration regulations protecting transgender people from discrimination in schools, colleges, and universities.

The new regulations also would expand protections for students against sexual harassment and violence, but the transgender language would run directly counter to Florida laws restricting access to bathrooms, changing rooms and from participating in sports teams that conform to a student’s gender identity as opposed to “biological sex.”

Florida Attorney Ashley Moody. Source: Screenshot/Florida Channel

“The idea that young girls can now legally be forced to undress in the same room with males in what is supposed to be a safe space like a locker room, that a young woman could be randomly assigned a roommate that is a biological male with little to no say over the matter, or that biological men would be eligible for women’s scholarships is ludicrous,” Moody said Monday in a written statement.

“To ensure safety and fairness, Florida will aggressively fight Biden who refuses to think through the real-world consequences before overhauling regulations,” Moody said.

Florida, Alabama, Georgia, and South Carolina filed the lawsuit in U.S. District Court in Tuscaloosa, Alabama, along with the organizations Independent Women’s Law Center, Independent Women’s Network, and Parents Defending Education, which describe themselves as parents’ rights organizations, and Speech First, which opposes campus speech codes.

The action names U.S. Secretary of Education Miguel Cardona and the U.S. Department of Education. It seeks a court order invalidating and blocking the new regulations, which are set to take effect on August 1.

Louisiana, joined by Mississippi, Montana, and Idaho, filed a similar lawsuit in federal court in Monroe, Louisiana. Texas filed its own lawsuit in federal court in Amarillo, Texas, a docket known to be favorable to right-wing causes.

Florida laws

Gov. Ron DeSantis praised the lawsuit on his X feed on Tuesday.

“Biden is abusing his constitutional authority to push an ideological agenda that harms women and girls and conflicts with the truth. We will not comply, and we will fight back against Biden’s harmful agenda,” the governor wrote.

Florida Education Commissioner Manny Diaz Jr. Credit: Florida Department of Education

Florida Education Commissioner Manny Diaz Jr. had issued an April 24 letter warning education officials to ignore the new federal regulations, saying they are not binding here. “At Gov. Ron DeSantis’ direction, no educational institution should begin implementing any changes,” Diaz wrote.

A number of Florida laws run directly counter to the regulations, including a measure that allows teachers and administrators to refuse to use the preferred names and pronouns of their transgender students and colleagues. Additional laws forbid them from using bathrooms and competing on sports teams that align with their gender identity, and forbid school officials from withholding from their parents if students come out to them.

“Instead of implementing Congress’s clear directive to prevent discrimination based on biological sex, the Biden administration maims the statute beyond recognition in an attempt to gaslight the country into believing that biological sex no longer has any meaning. In doing so, it seeks to commander Florida’s educational institutions and force them to violate various federal and state laws, including the First Amendment and Florida’s Parental Rights in Education Act, as well as statutes to protect students’ privacy in bathrooms and locker rooms,” Diaz added in the letter.

Title IX to the of the Education Amendments of 1972 says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

It governs an expansive swath of education policy, including access to facilities and programs including sports and how schools, colleges, and universities should handle internal complaints of sexual harassment and violence by students.

The U.S. Department of Education estimates that it will send Florida more than $10 billion during 2024 for programs including Pell grants, adult literacy, special education, and student loans.

“At the time of enactment, no one doubted that the law’s use of ‘sex’ referred to biological sex. And all relevant indicators confirmed what everyone understood: ‘sex,’ as used in Title IX, means biological sex and does not include “gender identity” or sexual orientation,” the brief that Florida joined asserts.

The brief refers to “immutable, biological differences between males and females.”

Eleventh Circuit ruling

The document cites a ruling by the U.S. Court of Appeals for the Eleventh Circuit in December 2022 rejecting a Florida transgender boy’s attempt to use public school bathrooms matching his gender identity. The full court overruled a three-judge panel that would have allowed him to use those facilities.

Elbert P. Tuttle Courthouse in downtown Atlanta, home of the U.S. Court of Appeals for the Eleventh Circuit. Credit: John McCosh

Florida, Alabama, and Georgia comprise the Eleventh Circuit’s jurisdiction, meaning they are bound by that ruling.

“[T]he department merely says that it ‘does not agree’ with [that case] and other courts coming to the same conclusion. But its disagreement cannot displace binding precedent’s authoritative interpretation of Title IX or the still-in-effect implementing regulations,” the brief says.

The brief also complains that the new regulation would define schools’ failure to force employees and students to observe students’ preferred pronouns as illegal harassment.

Although the states’ primary objections center on transgender rights, they also complain that the rule would unwind protections imposed by the Trump administration for people accused in campus investigations of sexual harassment and violence, including the right to a hearing, legal representation, and cross-examination of witnesses. The new rule also allows a single school official to investigate and impose sanctions for misconduct.

The brief notes that the ACLU has expressed qualms about some of those changes, including that it does “not require universities to provide a live hearing and an opportunity for cross-examination where serious sanctions, such as suspension or expulsion, may apply,” as the organization said in a written statement. However, the statement was broadly supportive of the new rules.

‘Arbitrary and capricious’

The complaint alleges the rule “asserts power that exceeds the agency’s lawful authority, and rests on reasoning (or a lack thereof) that is arbitrary and capricious,” in violation of the federal Administrative Procedures Act in these areas:

• Defining “sex” to include gender identity and sexual orientation.

• Defining “sex-based harassment” too broadly. For example, “The rule applies to speech uttered at all points in a student’s life, even when at home. But the government’s ability to punish speech made off school grounds is limited — even in the K-12 context and especially when it comes to ‘political or religious speech.’”

• Requiring colleges to scrap existing procedures to adjudicate sexual harassment and misconduct, including the right of an accused to counsel and to confront witnesses. “Courts have cautioned against the legality of proceedings where one person serves as the investigator, factfinder, and ultimate decisionmaker,” it says.

‘Tragic”

LPAC, an organization that supports LGBTQ people running for office, issued a written statement from executive director Janelle Perez in response to the lawsuit.

“It’s tragic to watch state leaders in conservative strongholds actively choose exclusion and discrimination over protecting all of our nation’s children. Clearly, when governors like Ron DeSantis preach about their commitment to protecting children, they conveniently ignore the rights of trans and nonbinary students — a stance that reeks of hypocrisy and is downright disgraceful,” Perez said.

“These actions, in a misguided effort to pander to extremist factions like Moms for Liberty, serve as a glaring reminder of the culture wars being fought on the backs of our children’s futures. It’s an utter travesty that these officials are pouring their energy into stripping away fair and equal protections under the law for some of our most vulnerable students to appease fringe groups pushing their hate-filled agendas that do nothing but demagogue and divide. Our children deserve better than to be pawns in these destructive political games,” Perez added.

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