PIERRE, S.D.- Attorney General Marty Jackley announced today that South Dakota has joined a lawsuit filed today in Nebraska Federal District Court against the U.S. Department of Education and U.S. Department of Justice over the bathroom mandate. There are a total of 23 states joining the Nebraska and Texas cases, 10 in Nebraska and 13 in Texas.
“As Attorney General it was and remains my hope that our country and state lawmakers can find a solution to the transgender bathroom concerns. However, the President’s mandate or directive that children of opposite sex must be required to share locker rooms and bathrooms under the threat of lawsuit and withholding of education funding is a solution that goes beyond his authority. I am therefore joining other Attorneys General in the Nebraska litigation to clarify that federal law cannot mandate that children of opposite sex be required to share locker rooms and bathrooms.”
States included in the Nebraska lawsuit are Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.
A similar case was filed earlier in the 5th Circuit District Court by State of Texas joined by Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin.
There is no cost for South Dakota to join these proceedings.
FOR IMMEDIATE RELEASE: Tuesday, June 7, 2016
CONTACT: Sara Rabern (605)773-3215
PIERRE, S.D.- Attorney General Marty Jackley announced today that South Dakota will join other State Attorneys General in challenge to President Obama’s letter directive to school districts threatening both civil rights litigation and the withholding of educational funds to the States.
“As Attorney General it was and remains my hope that our country and state can find a solution to the transgender concerns without forcing children of the opposite sex into the same bathrooms and locker rooms. The President’s attempt to require children of opposite sex to share locker rooms and bathrooms under the threat of lawsuit and withholding of education funding is a one size fits all solution that goes beyond his constitutional authority. It is my contention that federal law cannot direct local school districts on who can use locker rooms and bathrooms. These issues need to be handled as they have been for a long time- on the state and local level,” said Jackley.
In 1964, Congress enacted Title VII of the Civil Rights Act, making it illegal for employers to invidiously discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C.§ 2000e-2. Eight years later, Congress passed Title IX of the Education Amendments of 1972. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…” 20 U.S.C. § 1681. Title IX regulations issued by the Department of Education likewise expressly allow recipients of federal funding to “provide separate toilet, locker room, and shower facilities on the basis of sex,” provided that the facilities provided for “students of one sex” are “comparable” to the facilities provided for “students of the other sex.” The term “gender identity: does not appear in the text or regulators of Title IX.
The U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) contend that Title IX’s prohibition on discrimination on the basis of “sex” extends to discrimination on the basis of “gender identity.” Jackley contends that the DOJ and DOE lack any authority to issue such direction. It is the duty of Congress to legislate and the duty of the Executive Branch, including DOJ and DOE, to administer and enforce the laws that Congress enacts. Through this joint letter, DOJ and DOE have unilaterally attempted to change the clear meaning of law passed by Congress and impose new obligations on covered entities.
A case was filed May 25, 2016 in the United States District Court for the Northern District of Texas. Several Attorneys General anticipate filing an additional challenge to the President’s authority to issue the letter. This filing may be separate from the Texas case or filed in a different district court.
On Tuesday, March 29, FHA Public Policy Analysis Ed Randazzo, FHA Lobbyist Norman Woods and I made our way to Pierre for the Governor’s Veto Consideration Day. It was a FULL day, which began with Norman and I being invited to stand in a photo shoot as the Governor signed two of the bills we supported into law.
The First was the signing of SB129 – the Suicide Prevention Bill. South Dakota has become the 17th state to pass the Jason Flatt Act. Matt Walz of the Keystone Treatment Center, Canton, SD, said of SB129,
Today, supporters from across the state attended a bill signing ceremony with the Governor. The passage of the Jason Flatt Act in South Dakota is an exciting step toward reducing the ‘Silent Epidemic’ of teen suicide.
The Jason Flatt Act – South Dakota, will require teachers and certified public school personnel to complete at least one hour of training on youth suicide prevention and awareness per certification cycle. Teachers are on the front lines of suicide prevention and if given the right tools, they can identify a teen who may be considering suicide and refer appropriately.
Teacher training is proven to be one of the most impactful policy strategies a state can adopt to prevent teen suicide, said Clark Flatt, President of the Jason Foundation.
The Second signing was of SB72 – the Pain Capable Unborn Child Protection Bill. Representative Fred Deutsch, who also serves as the President of the SD Right To Life, wrote of those gathered for this photo shoot:
(We are) Grateful to work with these fine people to pass the Pain Capable Unborn Child Protection Act to protect from abortion unborn children who are capable of feeling pain.
When it comes to the subject of ABORTION Pope Francis was wise in having said: “Abortion is a death sentence for unborn children.” This bill – the Pain Capable Unborn Child Protection Act – supports South Dakota’s long-standing tradition of upholding a “culture of life.”
It was a good day of connecting with a number of our FHA Legislative friends and meeting some NEW Legislative candidates as well. One such friend is our Attorney General Marty Jackley. We are looking forward to working with him and fellow Legislators as we prepare legislation for the 2017 92nd Legislative Session in Pierre.