Arizona sues over Obama bathroom directives

• Arizona transgender advocates have praised the directives
• The Obama directives have been praised by some as a historic moment
• Opponents of the directives say they are unconstitutional and should be blocked

Arizona Attorney General Mark Brnovich has filed suit against the federal government over President Barack Obama's directive asking public schools to allow students to use bathrooms and locker rooms consistent with their gender identity.

Arizona joins Texas Attorney General Ken Paxton, who is leading the legal challenge, and other states, including Alabama, Georgia and Utah. The legal action, aimed at the U.S. Department of Education, the Department of Justice and other federal agencies, seeks to block implementation of the president's directive.

The lawsuit was filed Wednesday in the United States District Court for the Northern District of Texas.

Lawsuit claims federal overreach

Obama's directive asks schools to treat transgender students "consistent with their gender identity" regardless of how they are legally identified. The directive states that districts are expected to abide by the guidelines or risk losing federal funds.

Brnovich, a Republican who campaigned on a promise to defend state sovereignty, said in his filing that the orders represent executive overreach by the federal government and are unconstitutional. He argued such decisions should be left up to the states and school districts.

Montini: AG Brnovich sues because transgender discrimination is a 'right?'

“President Obama has no business setting bathroom and locker-room policies for our schools,” said Brnovich in a statement Wednesday. “The decision of how best to protect boys’ and girls’ privacy while balancing these complicated issues is best made locally and not by some knee-jerk decree from Washington.”

The lawsuit centers on who should be allowed to set the policy: the president, or states and local school districts. The legal challenge seeks declaratory relief against a number of federal agencies in order to block implementation of the directives.

The lawsuit asks the directives be declared unlawful and invalid "because they abrogate Plaintiffs’ sovereign immunity," among other reasons. The states seek attorneys fees.

The lawsuits accuses federal officials of conspiring "to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights."

The Obama directive was sent to school districts earlier this month in a letter by the U.S. Departments of Education and Justice in response to questions from school districts and universities.

That letter says both federal departments interpret "a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations."

The suit filed Wednesday argues "the new policy has no basis in law."

“While the Department will review the complaint, the federal government has strong legal foundations to uphold the civil rights of transgender Americans,” U.S. Department of Justice spokeswoman Dena Iverson said in a statement to The Arizona Republic.

School board joins suit

Brnovich filed the complaint on behalf of Arizona school Superintendent Diane Douglas, who has blasted the directives, and the Heber-Overgaard Unified School District in Navajo County. The district's governing board Tuesday voted to join the lawsuit.

Ron Tenney, superintendent of the Heber-Overgaard district, criticized the "one-size-fits-all" directives in a phone interview.

"We feel it’s our responsibility as a district to provide a suitable environment for learning and we desire to retain local control over the access of restrooms and locker rooms and other facilities that are already regulated by Title IX,” Tenney said.

Heber-Overgaard, a district of about 450 students, is one of two school districts represented in the lawsuit.

Douglas, a Republican, has said it is unfair for federal officials to threaten to withhold funding in order to force schools to comply with an issue she thinks should be handled at the local level. She was elected in 2014, campaigning on preserving local control of school districts, including fighting against the federally developed academic standards known as Common Core.

Douglas doubled down on her initial comments in a statement to The Republic on Wednesday.

"The fact that the federal government has yet again decided that it knows what is best for every one of our local communities is insulting and, quite frankly, intolerable," Douglas said in a statement.

Transgender advocates disappointed

Arizona transgender advocates — and one West Valley parent of a transgender student — have praised the president's directives, saying it will give transgender students the same civil rights as other students.

But Josef Wolf Burwell of TransSpectrum of Arizona, a transgender advocacy group. said Wednesday's lawsuit takes away from the protection the directives give to transgender students.

“It’s a disappointing direction for our state,"  said Burwell said of the lawsuit.

"It’s a step in the direction of segregation, a step against equality and it’s a fundamental misunderstanding about what transgender is.”

Jennifer Pizer, senior counsel with national gay-rights legal organization Lambda Legal, reviewed the lawsuit and called it an “unfortunate” political tactic designed to create confusion about a “non-existing“ problem. She said the guidance provided by the federal government seeks to advise school districts how to include transgender students appropriately.

“Transgender students do need access to facilities, and do need protection against discrimination, and there is no evidence of a problem on the part of non-transgender students,” Pizer said.

“Transgender students do not harass and abuse their fellow students, but transgender students do experience harassment and exclusion sometimes, and need protection against that sex-based discrimination.”

Pizer said the lawsuit ignores the position of medical professionals and the federal courts: “The fact that transgender people exist is not new. A transgender boy is a boy, and should be treated as a boy, and not made to be in inappropriate facilities — that is facilities for girls. This lawsuit is a political argument by those who disagree with the medial profession and the federal courts, and it's unfortunate that they are choosing to create controversy, and this will be harmful for students.”

Ducey wants local control

Battle brewing over transgender bathroom laws in state capitals

Gov. Doug Ducey, also a Republican, earlier this month blasted the Obama directives, saying "this is not an issue we're having in Arizona." But, he said, it's "an issue we're handling on the local level."

He added: "We don't need Washington, D.C., or the federal government telling us how to run our schools."

Ducey's spokesman, Daniel Scarpinato, reiterated that position Wednesday, after the suit was filed, saying the governor has clearly stated his position that school districts should make decisions about what's best for students and families.

"As with all federally-related cases, we trust the Attorney General to handle this issue appropriately," Scarpinato wrote in a statement.

Texas Gov. Greg Abbott was the first governor to rip the guidelines, saying Obama was turning the "Constitution on its head."

At least one Valley district, the Phoenix Union High School District, said it plans to ensure it complies with the directive.

Several other Valley school districts weren't immediately sure how the directives would affect them. The Peoria Unified School District and other districts said such decisions regarding students' bathroom use are left to schools to deal with on a case-by-case basis.

That's the way it should be, Douglas said Wednesday.

"When Arizona students attend school, they deserve a safe environment that is free from bullying and discrimination, regardless of their gender identity," Douglas said in a statement. "I know that our districts and schools have policies in place to ensure that is the case."

Cathi Herrod, head of the social-conservative Center for Arizona Policy, said in a statement parents have a right to ensure the safety, privacy and dignity of their children. She said the Obama administration is attempting to deny those rights.

The group — which is politically powerful at the state Capitol — will do "everything possible to support elected officials" who stand against "extreme" policies, the statement said.

"No child should be forced to undress in front of someone of the opposite sex," Herrod's statement said, adding, "We will not stand idly by and allow our children to be used as pawns in an extreme political agenda."

Phoenix Mayor Greg Stanton, however, said the legal challenge is "on the wrong side of the law, and on the wrong side of history."

In a statement, Stanton wrote: "Phoenix passed an ordinance to protect the LGBTQ community from discrimination in employment and accommodations, and it is working to the benefit of all residents and visitors for the past three years. Every student in our school system deserves the same basic civil rights protections as they attend class and pursue their education."

Follow the reporters on Twitter @yvonnewingett and @Ricardo_Cano1 and reach them at yvonne.wingett@arizonarepublic.com and Ricardo.Cano@gannett.com