Text of LA SCR 140 (2016)

SLS 16RS-3789 ORIGINAL 2016 Regular Session SENATE CONCURRENT RESOLUTION NO. 140 BY SENATORS RISER AND WALSWORTH LEGIS POWERS/FUNCTIONS. Proposes response to federal directive on Title IX of the Educational Amendments of 1972 related to gender identity by the state and local school boards. 1 A CONCURRENT RESOLUTION 2 To propose a response to the federal directive on Title IX of the Educational Amendments 3 of 1972 related to gender identity and the state and local school boards. 4 WHEREAS, on June 23, 1972, the federal government enacted Title IX of the 5 Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law which is the 6 comprehensive federal law that prohibits discrimination on the basis of sex in any federally 7 funded education program or educational activity; and 8 WHEREAS, May 13, 2016, the U.S. Department of Education and the U.S. 9 Department of Justice released a "joint guidance" directive ordering schools that receive 10 federal funding to "treat a student's gender identity as the student's sex for purposes of Title 11 IX and its implementing regulations" and further requiring schools to implement policies 12 whereby "gender identity refers to an individual's internal sense of gender....(and) may be 13 different from ...the person's sex assigned at birth"; and 14 WHEREAS, the May 13, 2016, "joint guidance" directive provides that all schools 15 receiving federal funds "must not treat a transgender student differently from the way it 16 treats other students of the same gender identity" and "(a) school may provide separate 17 facilities on the basis of sex, but must allow transgender students access to such facilities 18 consistent with their gender identity"; and Page 1 of 4 SCR NO. 140 SLS 16RS-3789 ORIGINAL 1 WHEREAS, the May 13, 2016, "joint guidance" directive provides the following 2 specific instructions regarding "sex-segregated activities and facilities": 3 (1) "Restrooms and Locker Rooms. A school may provide separate facilities on the 4 basis of sex, but must allow transgender students access to facilities consistent with their 5 gender identity. A school may not require transgender students to use facilities inconsistent 6 with their gender identity or to use individual-user facilities when other students are not 7 required to do so." 8 (2) "Athletics. Title IX regulations permit a school to operate or sponsor sex- 9 segregated athletic teams...A school may not, however, adopt or adhere to requirements that 10 rely on overly broad generalizations or stereotypes about differences between transgender 11 students and other students of the same sex (i.e. the same gender identity) or others' 12 discomfort with transgender students." 13 (3) "Housing and Overnight Accommodations. Title IX allows a school to provide 14 separate housing on the basis of sex. But a school must allow transgender students to access 15 housing consistent with their gender identity and may not require transgender students to 16 stay in single-occupancy Accommodations or to disclose personal information when not 17 required of other students."; and 18 WHEREAS, federal agencies have no authority to change existing federal statutes 19 through "guidance" directives without a change in the law enacted by Congress pursuant to 20 the Constitution of the United States of America; and 21 WHEREAS, federal agencies have no authority to impose new conditions in existing 22 statutorily created programs without first seeking legislative authority from Congress; and 23 WHEREAS, the U.S. Department of Education has no authority to revoke funds 24 based upon new interpretations of law that are contrary to the clear language of Title IX; and 25 WHEREAS, there is no indication by the clear and unambiguous language of Title 26 IX, its legislative history, and its definitions that the term "sex" was ever intended to be 27 expanded to include "transgender" or "gender identity"; and 28 WHEREAS, "sexual identity" is a biological fact determined by medical 29 professionals based upon DNA, the human genome, and biological and physical 30 characteristics; it is not an assignment made at birth or a choice to be made at some later date Page 2 of 4 SCR NO. 140 SLS 16RS-3789 ORIGINAL 1 after birth; and 2 WHEREAS, the word "sex" as contemplated by the laws of this state is either of the 3 two categories, male and female, into which humans and many other living things are 4 divided on the basis of their reproductive functions; and 5 WHEREAS, providing protection in state-owned facilities falls squarely within the 6 police powers of the state protected from federal encroachment by the Tenth Amendment 7 of the Constitution of the United State of America; and 8 WHEREAS, the actions of the federal government constitute an improper attempt 9 to commandeer state-owned property in pursuit of a federal purpose without compensation 10 to the taxpayers of Louisiana who paid for the state-owned property; and 11 WHEREAS, the policy position adopted by the U.S. Department of Education and 12 the U.S. Department of Justice in the "joint guidance" directive has the clear and present 13 danger of creating an unsafe environment in which young girls will be unnecessarily 14 exposed to male sexual predators who are impersonating transgendered women in order to 15 gain access to women's bathrooms, women's showers, and women's locker rooms; and 16 WHEREAS, if Louisiana's schools and universities are compelled to follow the "joint 17 guidance" directive and allow anatomical males who self-identify as females to enter the 18 women's bathrooms, the implementation of the directive is likely to create a hostile work 19 environment for the school's women employees which will result in otherwise unnecessary 20 litigation to resolve the competing interest between the anatomical male/transgendered 21 females and the woman employees of the school or university; and 22 WHEREAS, the actions of "joint guidance" directive violates the expectation of 23 privacy and safety of Louisiana citizens. 24 THEREFORE, BE IT RESOLVED that the Legislature of Louisiana does hereby 25 resolve that the state of Louisiana, its universities, agencies, departments, and local school 26 boards shall not take any action to implement the May 13, 2016, U.S. Department of 27 Education and U.S. Department of Justice "joint guidance" directive ordering schools 28 receiving federal funding to "treat a student's gender identity as the student's sex for purposes 29 of Title IX and its implementing regulations" until such time as a court of competent 30 jurisdiction rules on the merits of the constitutionality of the directive. Page 3 of 4 SCR NO. 140 SLS 16RS-3789 ORIGINAL 1 BE IT FURTHER RESOLVED that the Louisiana Legislature does hereby urge and 2 request the attorney general of the state of Louisiana to file and proceed with any legal action 3 necessary to enforce the provisions of this Resolution. 4 BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted to the 5 U.S. Department of Education, the U.S. Department of Justice, and the Louisiana Attorney 6 General Jeff Landry. The original instrument and the following digest, which constitutes no part of the legislative instrument, were prepared by Carla S. Roberts. DIGEST SCR 140 Original 2016 Regular Session Riser Proposes a response to the federal directive on Title IX of the Educational Amendments of 1972 related to gender identity and the state and local school boards. Requests the attorney general to file and proceed with any necessary legal action. Page 4 of 4