North Dakota joins lawsuit to block federal transgender sports rule

BISMARCK — North Dakota has joined a lawsuit seeking to block a Biden Administration rule that would force schools to let transgender girls and women play in female sports.

Attorney General Drew Wrigley announced Tuesday, May 7, that North Dakota is a plaintiff in a federal civil suit against the U.S. Department of Education. The suit, filed Tuesday in the U.S. District Court for the Eastern District of Missouri, seeks to stop a rule that would allow anyone to join a gender-assigned sport based on their gender identity.

“Congress enacted Title IX more than 50 years ago to protect and promote opportunities for women and girls in education and sports,” Wrigley’s news release said. “President (Joe) Biden and his Department of Education are now casting aside the work of Congress and radically reinterpreting Title IX as a rule about subjective gender identity.”

The Education Department announced plans last month to draft the rule, saying it would provide schools — both K-12 and higher education institutions — with “framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.” The rule asserts that schools would violate Title IX, a federal law that prevents discrimination in schools based on sex, if they banned transgender students from participating in sports consistent with their gender identity, the Education Department said.

"Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” U.S. Secretary of Education Miguel Cardona said in a statement. “Being on a sports team is an important part of the school experience for students of all ages.”

In a statement to The Forum, Cody Schuler, ACLU of North Dakota advocacy manager, called the lawsuit “political grandstanding" and an "attempt to erase transgender people from society" while appealing to anti-trans activists.

"Trans students participate in sports for the same reasons other young people do: to challenge themselves, improve fitness and be part of a team," Schuler said. "Transgender youth in North Dakota deserve all of the benefits that come with participating in sports. They also deserve joy, opportunity and protection, not more bullying from our elected officials.”

The lawsuit, which also includes Missouri, Arkansas, Iowa, South Dakota and Nebraska as plaintiffs, said the Education Department’s rule ignores biological sex in favor of gender identity.

Congress made Title IX with the idea of protecting safety and opportunities for women, Wrigley said, adding that lawmakers decided there are two genders: male and female.

"They were free to make it different from that, but they didn't," he said.

The Biden Administration is overstepping Congressional power by implementing the rule, Wrigley told The Forum. Biden officials are free to try to persuade Congress to change the law, he said.

"They gutted the meaning and promise of Title IX," Wrigley said of the Education Department, adding that "Biden bureaucrats ... turned Title IX on its head."

"The rule being challenged requires schools and universities to allow men onto women and girls’ sports teams, undermining safety and privacy, and robbing young female athletes of opportunities,” Wrigley said in the release.

The lawsuit criticized the rule by claiming it would “destroy the privacy protections women and girls currently enjoy in restrooms, locker rooms, shower facilities, and overnight accommodations.” School staff, teachers and students could face punishment if they fail to use a person's "preferred pronouns," the lawsuit said.

A child from Arkansas is listed as a plaintiff by her initials. She claims the rule would violate her religious beliefs and fears retaliation if she didn't use another student's preferred pronouns, the lawsuit said.

The rule would threaten to withhold federal funding from schools that don’t adhere to the regulations, according to the lawsuit.

Policies embraced by Wrigley and the North Dakota Republican Party to keep transgender women from participating in female sports are harmful both to transgender people and "cis-gender" women, North Dakota Democratic-NPL Party Deputy Executive Director Scottlyn Schuler said in a statement. The lawsuit isn't about sports or protecting children, she said.

"I remember when it was asked if gay kids should be in locker rooms," she said. "It wasn't that long ago that women were considered too weak to play full court basketball. Women's sports is one of the places all LGBTQ+ are most accepted. ... Just as people aren't listening to transgender people, they aren't listening to most women athletes. It's simple discrimination."

The Education Department rule goes into effect Aug. 1, but the lawsuit asked for a temporarily block until a final ruling on the lawsuit is issued.

The Republican-controlled Legislature in North Dakota approved a bill last year that bans transgender girls and women from playing on female sports teams in K-12 and higher education schools. Gov. Doug Burgum, also a Republican, signed the bill into law.

The North Dakota Department of Public Instruction said it has spoken with the Attorney General's Office about drafting the rule, adding it would defer to legal experts in determining a path forward. Lawmakers also have requested an opinion from Wrigley's office on whether North Dakota schools must comply with the North Dakota sports law despite the U.S. Education Department's interpretation of Title IX.

The North Dakota University System and its 11 schools are "committed to preventing and remedying discrimination and harassment on the basis of sex, in full compliance with state and federal law," Chancellor Mark Hagerott said in a statement.

"Our focus is providing a safe environment for all members of our community," he said.