Ten additional states have sued the Obama administration over federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity.
Nebraska, Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming filed the lawsuit Friday in a Nebraska U.S. District Court. In doing so, the states will make their case in a conservative jurisdiction that provides a pipeline to the similarly right-leaning Eighth Circuit Court of Appeals.
The latest lawsuit brings the number of states pursuing legal action over the guidance to 21. In May, 11 states and state officials sued the Obama administration in the U.S. District Court for the Northern District of Texas, viewed as a similarly friendly environment for the plaintiffs. Both complaints rely on a legal claim designed to appeal directly to conservative judges.
A U.S. Department of Justice spokesperson at the time nevertheless expressed confidence in the administration’s legal standing about what amounts to “significant guidance,” which lacks the force of law or an executive order. The complaints charge that the guidance failed to go through notice-and-comment rulemaking, but as explained by Rewire’s Imani Gandy, the administration doesn’t need the public to weigh in on guidance that clarifies existing laws. Typically, the contents of a guidance document do not amount to an “injury in fact,” the basis for successful lawsuits.
Most of the states in the lawsuits have Republican administrations in place. Montana, West Virginia, and Louisiana have Democratic governors.