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.
Sioux Falls residents please take heed! The Sioux Falls City Council is entertaining the passage of “AN ORDINANCE OF THE CITY OF SIOUX FALLS, SD, AMENDING THE CODE OF ORDINANCES OF THE CITY BY AMENDING CHAPTER 98: HUMAN RELATIONS” (the Human Relations Ordinance” or “HRO”). The HRO was read for the second time at the Tuesday, May 3, 2016 meeting of the City Council, but further action was deferred to the City Council meeting on Tuesday, June 14, 2016, at 7:00 p.m. FHA Action believes the HRO contains a number of serious deficiencies, which require that it be rejected.
FHA Action has contacted several national organizations to legally assist us in both understanding the intent of this Ordinance and how to effectively deal with its egregious nature. One of those organizations is Liberty Counsel. Liberty Counsel is an international non-profit legal, media and policy organization with offices in Orlando, Florida; Lynchburg, Virginia; and Washington D.C. They specialize in First Amendment religious liberty matters and the protection of constitutional liberties.
Recently Liberty Counsel has written and sent a ‘Letter of Concern’ over this HRO to Sioux Falls Mayor Mike Huether and the eight City Council Members. Please CLICK HERE to read this well documented piece.
On Thursday, May 19, FHA Action called an emergency meeting of faith-based community leaders to meet for the purpose of discussing this HRO and determining where we would go from here. Forty plus Sioux Falls Pastors, Legislators, Elected Officials, Grandparents and Parents showed up for this information-gathering-meeting. The meeting lasted an hour and 15 minutes and included very helpful phone calls from Attorney’s with Liberty Counsel and Focus On The Family.
- Bruce Hausknecht of Focus On The Family wrote: “This ordinance is a recipe for community friction, lawsuits, and the further interference by government into the affairs of the church.”
- Richard Mast of Liberty Counsel wrote: “The City (Sioux Falls) has an obligation to protect women and girls from men invading private areas reserved for women. The City should not infringe upon the religious liberties of private businesses, churches and religious organizations in their employment decisions. The City should not override the rights of parents of students in schools to shield their children from gender confusion or inappropriate expressions of sexuality. For these reasons and others, therefore, the HRO should be rejected.”
Please ACT NOW and contact your Sioux Falls Mayor Mike Huether and your City Council Members (below) and respectfully share your great concern over the Amendments being proposed to the city’s Human Relations Ordinance (HRO). This HRO should be rejected! Remember, it has been rightly said, “What is tolerated today becomes accepted tomorrow.”
Sioux Falls City Council:
Mayor Mike Huether
Christine M. Erickson