Kidston: Fox’s transgender lawsuit doesn’t speak for all of us

By Martin Kidston

On May 13, the U.S. Department of Education released a Dear Colleague letter advising schools across the country of amendments made by President Barrack Obama to Title IX, the 1972 law that aims to stamp out sex discrimination in education.

In case you missed it, the amendments added “discrimination based on a student’s gender identity” and “discrimination based on a student’s transgender status.” It took Montana Attorney General Tim Fox less than two months to challenge the law.

On July 8, Montana joined nine other states by filing an action in federal court challenging the recent changes to Title IX. Fox’s lawsuit, which all Montanans are now a part of, attacks the Title IX changes as “the most recent example of overreach from President Obama’s administration.”

We’ve heard this more than once from Fox’s office, leading one to wonder if he’s more interested in playing partisan politics than he is in defending the rights and dignity of Montana citizens, including our transgender neighbors.

I don’t believe this is the case given Fox’s heroic efforts to end human trafficking in Montana. His work on that front has been groundbreaking, blind to gender and race, and it has placed Montana at the forefront of fighting what experts paint as modern-day slavery.

Fox’s success on combating human trafficking is why his recent decision to sue over bathroom policies is so baffling and disappointing. Montana should be fighting for change and equality, not resisting it by joining a backwater lawsuit with a handful of states we would be wise to distance ourselves from.

While the legalese in the lawsuit’s 34-page complaint against the Department of Education serves to muddy the argument, the issue remains rather simple. Title IX serves to ensure that schools create “inclusive, supportive, safe, and nondiscriminatory communities for all students.”

In that sense, Title IX hasn’t changed one bit, though it may read differently than it did a few short months ago. It now suggests that “harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex.”

It also protects students from discrimination based on gender identity and one’s transgender status. And this is what appears to be causing Fox and the nine other states on the lawsuit so much grief.

In simple terms, the law allows transgender students to use the bathroom that matches their gender identity. By signing the lawsuit, Fox has taken issue with this, accusing the Department of Education of changing the “definition of the term ‘sex.’”

In the eyes of those who joined the suit (all of us by default), schools should be content in providing facilities based upon a student’s “biological sex, consistent with one’s genes and anatomy.” This comes across as an archaic and discriminatory view of an increasingly diverse world. It could also be bad for business, let alone Montana’s reputation as an increasingly inclusive state.

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Martin Kidston

A report from the Center for American Progress has estimated that North Carolina has already lost out on $86 million after it passed its bill forcing transgender residents to use the bathroom that matches their sex at birth. If the bill is not repealed, the report notes, North Carolina could lose an additional $481 million due to canceled events, businesses leaving the area, and tourism declines.

The point is that by joining this suit, Fox has placed Montana on the wrong side of history, and he’s taking us all for the ride, one that aims to humiliate and embarrass some of our friends and neighbors by forcing them to use a bathroom that doesn’t match their current gender or identity.

While Fox labels the entire lawsuit as an attempt to stop Obama’s “overreach,” even this is tiring and full of hypocrisy. Last year from his Helena office, Fox attempted to stop the Missoula City Council from passing a local ordinance requiring background checks on gun sales and transfers.

He joined U.S. Sen. Steve Daines and Rep. Ryan Zinke on that issue, and while they all said they believed in local control, the gun ordinance presented a “rare occasion” for them to express their opposition to local legislation.

Either you believe in local control or you don’t; you can’t argue overreach when it suits you and cast it aside when it doesn’t. While I support much of the work Fox has accomplished as attorney general, I can’t support his latest move. It smacks of discrimination, partisanship and bias, and does nothing to move Montana forward.

As a Montana resident, I’m embarrassed to be a part of it.