- The Washington Times - Thursday, July 7, 2016

Perhaps no official has curtailed the excesses of the administrative state more than Texas Attorney General Ken Paxton — and now he has the Obama administration’s ruling on school bathrooms in his sights.

Speaking Thursday at the Heritage Foundation, Mr. Paxton, who heads a 13-state coalition suing the federal government over the mandate, laid out the legal argument against the directive.

The directive relies on Title IX’s prohibition against “sex” discrimination in order to force public schools to grant transgender students access to the lavatory facilities of the opposite sex. Schools that refuse to comply with the order risk losing millions in federal funding.

Mr. Paxton said the Obama administration’s reading not only misinterprets Title IX but also violates constitutional limits on federal power and legislative regulations.

The attorney general pointed out that Congress has for years refused to add prohibitions on gender identity discrimination into Title IX. Like the medical and psychological communities, Congress has long held that the terms “sex” and “gender” are distinct, listing them alongside each other in several pieces of legislation.

“This pattern shows that Congress knows exactly how to prohibit gender identity discrimination, and they do it by saying it prohibits gender identity discrimination,” Mr. Paxton said. “By rejecting every attempt to do so in Title IX, Congress has made its intent clear that gender and sex are very different.”

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In less than two years on the job, Mr. Paxton has filed eight lawsuits against the federal government on issues such as environmental regulations, health care and religious freedom. He led a 26-state coalition in a successful lawsuit against Mr. Obama’s executive order on immigration amnesty, winning three times at the federal level.

In the amnesty case, Mr. Paxton successfully argued the federal government failed to abide by the Administrative Procedure Act, which requires legislative or substantive rules to go through notice and comment rule-making to allow for public participation.

Mr. Paxton said that same argument applies to the bathroom directive.

“The letter is binding, and schools disobey it at their own peril,” he said. “Because the guidance letter amounted to a rule, it violated the requirement of going through the rule-making process.”

Additionally, he said the 10th Amendment prohibits the federal government from coercing states by threatening to withhold funding.

“When the fed sends money to the states, the terms they require cannot be coercive because the states are sovereign,” Mr. Paxton said.

He also pointed to the U.S. Supreme Court’s 2012 decision in NFIB v. Sebelius, which upheld Obamacare’s individual mandate but struck down its provision coercing states into expanding Medicaid coverage.

“The bright spot there was that a majority of the court held the feds conditioning existing Medicaid funds on states agreeing to expand Medicaid was a real gun to the head,” he said. “Medicaid amounted to about 10 percent of the states’ budgets at the time. Here, over 18 percent of our Texas education budget is composed of federal funds. That is clearly a gun to the head.”

Mr. Paxton and the 13-state coalition filed a lawsuit challenging the bathroom order on May 25. It came after a protracted battle in North Carolina over a law regulating public facilities on the basis of biological sex.

The U.S. Department of Justice and North Carolina filed dueling lawsuits over the agency’s interpretation of Title IX and other federal statutes.

The highest court to rule on the meaning of Title IX is the U.S. Court of Appeals for the 4th Circuit. That court upheld the Obama administration’s interpretation, overruling a Virginia school board that provided a transgender student with several separate facilities in which to use the restroom and change.

But Mr. Paxton was optimistic other courts will rule in favor of the states.

“How you feel about your gender does not change your sex at birth,” he said. “And how the president feels about his authority to write laws cannot change the fact that the Constitution grants that power to Congress. As with our immigration case, we hope the courts will agree and uphold the Constitution.”

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