The False Premise Texas Is Using To Challenge Transgender Protections

Attorney General Ken Paxton announcing the lawsuit Wednesday. CREDIT: FACEBOOK/KEN PAXTON
Attorney General Ken Paxton announcing the lawsuit Wednesday. CREDIT: FACEBOOK/KEN PAXTON

On Wednesday afternoon, Texas Attorney General Ken Paxton (R) announced that he had filed a suit against the federal government challenging its guidance on inclusion for transgender students. Texas was joined by several other states, including Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, Georgia, Arizona, as well as Maine Gov. Paul LePage (R), a school district in Texas, and a school district in Arizona.

The entire lawsuit is based on a false premise. As Paxton explained at the beginning of Wednesday’s press conference, the federal government’s directives “open all school bathrooms to people of both sexes.” The lawsuit similarly suggests that the guidance requires that “persons of both sexes have a right to use previously separate sex intimate facilities.”

Drawing this conclusion requires both a deliberate misreading of the guidance and a rejection of who transgender people are. The letter issued earlier this month by the Department of Justice (DOJ) and Department of Education (DOE) specifically affirms that “Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.” It simply adds that when doing so, schools must allow transgender students to participate in accordance with their gender identity.

The Texas lawsuit doesn’t even use the word “transgender” except when quoting from other documents, and it uses scare quotes to mock the concept of “gender identity” throughout. After describing the guidance as a “massive social experiment” that runs “roughshod over commonsense policies protecting children and basic privacy rights,” it proceeds to layout an unrecognizable understanding of gender identity:

According to the Letter, schools must treat a student’s “gender identity” as the student’s “sex” for purposes of Title IX compliance, with one notable exception. “Gender identity,” the Letter explains, refers to a person’s “internal sense of gender,” without regard for biological sex. It can be the same as a person’s biological sex, or different. The Letter provides that no medical diagnosis or treatment requirement is a prerequisite to selecting one’s “gender identity,” nor is there any form of temporal requirement. In other words, a student can choose one “gender identity” on one particular day or hour, and then another one the next. And students of any age may establish a “gender identity” different from their biological sex simply by notifying the school administration — the involvement of a parent or guardian is not necessary.”

The suit also claims that the guidance requires “seismic changes” to how the schools operate, because they must allow students to “choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day.”


The notion that a gender identity can be chosen or that it can flipflop by the hour ignores the definition provided by the DOJ and DOE — that it is “an individual’s internal sense of gender.” The guidance also repeatedly refers to providing treatment that is “consistent” with students’ gender identity, something that could not be done but for the assumption that their identity is, in fact, consistent.

Two Paragraphs That Should Convince Everyone That Transgender Discrimination Is WrongLGBT by CREDIT: ACLU For years, various governmental agencies have argued that nondiscrimination protections based on…thinkprogress.orgJoining the lawsuit was Harrold Independent School District, a tiny Texas school with just over 100 students in grades K-12. On Monday, the school board passed a policy banning transgender students from accessing bathrooms and other facilities that match their gender identity. At the press conference, superintendent David Thweatt claimed that the policy is meant to ensure that ‘every child’s privacy is safeguarded.”

Despite its size, Harrold ISD is no stranger to controversy. In 2008, the district implemented a policy allowing teachers and staff to carry guns in school. That policy made national news in 2012 after the mass shooting at Sandy Hook Elementary School. The policy remains on the books, and not even the principal knows which teachers are armed and which aren’t.

During Wednesday’s press conference, Paxton dodged questions about whether the trans-inclusive guidance poses any real threat:

  • Are there any examples of such policies being harmful to students? “That’s not what this is about,” Paxton claimed, despite having just made a comment about student safety. He instead emphasized that the law was focused on how the Obama administration had overreached.
  • Do trans kids exist and do they warrant protection? Refusing to answer yes, Paxton instead said, “I know that in this case with Harrold ISD, they have a policy that will deal with that on a case-by-case basis. That’s up to districts and that’s up to parents.”
  • Are you aware of an instance where this has been a safety issue? “This is a new policy, so there’s not a lot of research and policy. These are brand new guidelines that are just now being implemented.”

On that last point, Paxton’s claim of ignorance doesn’t hold up. Though the federal guidance is new, schools across the country have had trans-inclusive policies for years, and there’s never been a single problem. As the Texas Freedom Network pointed out, “There have been more criminal charges filed against Paxton than there have been cases — zero, in fact — of transgender people using non-discrimination policies as an excuse to enter public restrooms to commit assaults.”


The lead counsel on the case is Austin Nimocks. Before working for Paxton, Nimocks was senior counsel for the Alliance Defending Freedom (ADF), where he helped them repeatedly lose cases challenging marriage equality. ADF is behind multiple other lawsuits challenging the transgender guidance and has also persuaded schools to pass anti-trans policies like Harrold’s by promising to provide free counsel.

Despite the losing record Nimocks brings to the case, he may prevail at the district court level. The only judge on the bench in the federal district court in Wichita Falls, where Harrold ISD is located and where the suit was filed, is Judge Reed O’Connor. In 2014 and early 2015, when federal judges were ruling in favor of same-sex marriage across the country, O’Connor was one of the only judges — and indeed, one of the last judges anywhere — who ruled against it.