Transgender Bathroom Lawsuit

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Arizona has joined other states that are suing over the Obama administration’s directive that tells schools to allow students to use bathrooms and locker-rooms based on their gender identity. The suit was filed by the state attorney general on behalf of Arizona Superintendent of Public Instruction Diane Douglas, who will discuss the issue.

Ted Simons: Coming up next on "Arizona Horizon," Arizona joins a lawsuit over President Obama's directive to schools regarding gender identity. And we'll look at a new study on how legalizing marijuana could impact tax revenue in the state. Those stories next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the Friends of Arizona PBS, members of your PBS station. Thank you.

Ted Simons: Good evening and welcome to "Arizona Horizon," I'm Ted Simons. Arizona this week joined a number of other states in suing the Obama administration over a directive to schools regarding the use of bathrooms and locker-rooms consistent with their gender identity. The suit was filed by the state attorney general on behalf of Arizona superintendent of public instruction Diane Douglas, who joins us now to discuss the issue. Good to see you again, thanks for joining us.

Diane Douglas: Nice to be back Ted thank you.

Ted Simons: Why should the courts block this directive?

Diane Douglas: Well, we need to have clarification on it. This is an issue I campaigned very strongly on about our right to control our schools and our education system here in Arizona without mandates from the federal government. So once again we're getting another mandate so once again, we need to ask the courts to weigh in and help.

Ted Simons: But the idea of ordering schools to treat transgender students consistently with gender I.D., that's what the directive says. Do you disagree with that idea?

Diane Douglas: Again, it's about who makes those decisions and how are they made? Gender is a protected class. Gender I.D. is not right now so we just need to have courts clarify that. I think it's either done by the courts or it's done by Congress. We just had a new education law passed, every student succeeds act, and certainly that should have been part of the discussions if that's the direction our lawmakers wanted to go.

Ted Simons: Critics look at this decision as basically saying you are allowing schools to discriminate.

Diane Douglas: Again, that comes into the area of what is a protected class and that's up to the courts to decide, not up to me to decide, nor the president to decide.

Ted Simons: But right now, the president has decided and he has decided that discrimination against gender identity in schools, bathrooms, locker rooms, universities, housing, those sorts of things, it's not right, it violates title nine protections.

Diane Douglas: In his opinion.

Ted Simons: Yes.

Diane Douglas: And that's what we're asking the courts to decide, is that the appropriate decision maker in those cases? That's not how we make laws in this country.

Ted Simons: Do you disagree with this decision?

Diane Douglas: I'm certainly going to do everything I can to protect the right and the sovereignty of the Arizona education system and we have to ensure that all Arizona children are treated fairly and we have to make sure the decisions that impact them are made here in Arizona by locally elected school board members, that's what we elect them for.

Ted Simons: If those decisions discriminate against transgender students, are you okay with that?

Diane Douglas: We don't know that those decisions discriminate. We don't even know that that is discrimination. We have to ask the court to clarify what are protected classes?

Ted Simons: If those decisions discriminate against a transgender student, you'll know one way or the other, if they discriminate against a transgender student, are you okay with those decisions? They're made by local school districts.

Diane Douglas: We have to know where that decision falls first. You're putting the cart in front of the horse and you're asking me to play the what if game and I'm not going to play the what if game.

Ted Simons: Well, the concern here is that there would not be anywhere near the hew and cry on what directive kind of chalk to use.

Diane Douglas: Mine would be just as loud in the federal government said to.

Ted Simons: The fact is this is an emotional topic, something where many people say that gender identity should not be a factor in using bathrooms, locker rooms, or gender-specific housing at universities.

Diane Douglas: And we're asking the courts to determine that for us.

Ted Simons: What do you think about it?

Diane Douglas: It's irrelevant what I think.

Ted Simons: Is it really irrelevant what you think?

Diane Douglas: It is. We are a nation of laws and we have to abide by the laws and laws have to be set in the proper format. I mean, we're having a president now who by fiat wants to impose a standard on our society and wants to do it with a very heavy hand and a very heavy fist. He's talking about potentially over $1 billion in Arizona if we don't comply and I can't speak to what it may be in other states but we know what the consequences that would hurt our most vulnerable children, our special ed children, our children who depend on the funding for free and reduced lunch, who need services because of their socioeconomic situation.

Ted Simons: But it would hurt them only --

Diane Douglas: It's shameful.

Ted Simons: It would hurt them only if the school districts or the state said no we're not going to allow transgender kids --

Diane Douglas: If it's a valid decree on the part of the president, that's not how we make laws in America.

Ted Simons: The president says the directive gives transgender kids the same rights as others under title nine. Is he wrong?

Diane Douglas: We're asking the courts to determine that.

Ted Simons: So by asking the courts -- [ Overlapping Speakers ] By asking the courts to determine it, you are suggesting that he is not accurate on this?

Diane Douglas: I am asking the courts to resolve that issue. It is an unresolved issue and it needs to be adjudicated appropriately.

Ted Simons: Do you think the rights in other cases, the rights of African-Americans in the south, the rights of homosexuals in other areas, do you think those needed to be adjudicated before those people had their individual rights?

Diane Douglas: Those acts did come through the civil rights act. That's a fact.

Ted Simons: They did but before the civil rights act, did those people have rights that needed to be respected?

Diane Douglas: You're comparing apples and oranges and again, I'm going to put my faith in the court system to do that. I also very strongly, very heavily put my faith in our locally elected school boards, for them to look at what are the situations in their communities and how are they best handled? We have some school districts in Arizona that are tiny, tiny little school districts with virtually no facilities and we have other school districts that have multiple schools, dozens of schools, and have all different types of accommodations and budgets and I trust our administrators and I trust our locally elected school boards to determine those as best they can.

Ted Simons: So until the court does make its decision, it is okay for local school boards and districts to discriminate against transgender kids?

Diane Douglas: I do not call it discrimination, Ted. You do.

Ted Simons: What do you call it?

Diane Douglas: It is a ruling we need from the court on a possible expansion of protected classes or they say that the protected classes are what they are and have been defined. It's a gray area. And that's what the courts do each and every day.

Ted Simons: And until the courts decide, for that particular gray area, the gender identity issue goes against what the transgender community and others in education and outside say -- they are saying that these kids are being harassed, are being abused because they're not being allowed to use bathrooms, locker rooms, of their gender identity.

Diane Douglas: And I have talked to school districts and heard of school districts that deal with this issue each and every day and they do it in a way that keeps the safety and the wellbeing of all students protected and that's important.

Ted Simons: If that's happening, then why are you fighting the president's -- I understand, I understand the issues.

Diane Douglas: You're going to hear it again.

Ted Simons: But I mean, goodness, gracious. Why fight something -- if it's already being done, if these kids are already being protected, if they have nothing to worry about now, what difference does it make?

Diane Douglas: Because the president is overreaching and coming in and telling us how we have to do it and he's not only telling us exactly how we have to do it, he's telling us what he's going to do to us if we don't do it his way. And that's something -- I think I was here during the campaign and talked quite a bit about my belief of the overreach of the federal government.

Ted Simons: Do you think that transgender students need protection, need protection from discrimination -- do you think they need protection from discrimination?

Diane Douglas: I think all students need protection from potential bullying that may incur. We have statutes on the books here in Arizona to make sure all students are protected.

Ted Simons: So you're saying that this would not necessarily be --

Diane Douglas: I am concerned about others that may take advantage of this -- this fiat that has come down.

Ted Simons: Have we had any instances?

Diane Douglas: What about adults who may go in and take advantage of it? What about oh, teenage boys who may decide to take advantage of an opportunity to get into a girls locker room?

Ted Simons: Have we seen that happen so far with people pretending that their gender identity is different than what it is to get a thrill?

Diane Douglas: That would be investigation that I would do if I were writing the policy and once again, I'm not going to be the one to write the policy, nor should the president in Washington, D.C.

Ted Simons: Because critics --

Diane Douglas: I expect our local school boards to do their due diligence in whatever policy they put in place.

Ted Simons: The other side says that's not a problem and it really hasn't happened and there haven't been any incidents or reported incidents. The only incidents they're saying are transgender kids being abused and harassed.

Diane Douglas: And where are the reports of that?

Ted Simons: So you basically don't think that exists?

Diane Douglas: I'm not saying that, I'm saying things can exist on both sides of the issue.

Ted Simons: Last question. Courts come back and say, sorry Ms. Douglas but we think that the president was the right in this directive and these transgender kids do have this right to use bathrooms, locker rooms, based on gender identity. How would you respond?

Diane Douglas: That will be resolved by the courts.

Ted Simons: And when it is, how would you respond?

Diane Douglas: I believe in the rule of law. I believe that if we don't like the laws in our country, then we work to change the laws of our country and I suspect maybe our congressional delegation might just be hearing something from me.

Ted Simons: Good to see you again.

Diane Douglas: It's nice to see you again Ted. Thank you for the time today.

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