A federal district court judge issued a preliminary injunction against official LGBTQ guidance from the Department of Education and Equal Employment Opportunity Commission regarding Title IX and the Civil Rights Act. The injunction enjoins the department from implementing the rules until a final court decision has been made.

“Because the challenged guidance documents affect the sovereign rights of Plaintiff States, and because this case raises substantial questions regarding the validity of that guidance, the Court finds the harm to Plaintiffs outweighs any harm the preliminary injunction might cause Defendants,” District Judge Charles E. Atchley Jr wrote. 

The department’s guidance, which initially took effect June 22, stated, “OCR will open an investigation of allegations that an individual has been discriminated against because of their sexual orientation or gender identity in education programs or activities. This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities.“

If the guidance were to stand, the plaintiffs argue it would require schools subject to Title IX to  allow males who identify as females to participate in female athletic teams and use female-designated showers and locker rooms.

Arizona Attorney General Mark Brnovich was one of 20 attorneys general who successfully obtained that preliminary injunction. He joined Straight Arrow News Political Correspondent Ray Bogan to discuss the case.

Ray Bogan: One of the things that you and the group of attorneys general argued was that this type of guidance should not be done at the federal level, it should be done at the state and local level. Why is this a state and local issue?

Attorney General Brnovich: Well, first and foremost, we have to recognize that the federal government was designed to have limited powers, and it was the states that created the federal government, the federal government didn’t create the states. Where the states are the proverbial 50 laboratories of democracy as Justice Brandeis once described them. So when it comes to issues, especially issues of public health, education, those were issues, those were policy decisions that were meant to be left to the states. Because what happens in Manhattan, Kansas may be different than Manhattan, New York, and even Manhattan Beach, California. So that’s what federalism is all about. But what it should is especially troubling, is where you have the Biden administration trying to impose this top down approach, and basically involve themselves in every local school board with a top down policy that says that if you don’t obey the federal government, that you somehow are involved in discrimination. And myself and my colleagues believe very strongly that not only is education socially left, at the local level, but furthermore, there’s something inherently wrong when you have someone that identifies you, if you have a boy that identifies as a female, under the Biden administration, that individual would be not only allowed to compete against females in athletics, which he thinks is an unfair advantage. But he, she, however they identify, would also be able to use a woman’s locker room, and you know, use a woman shower, and I will tell you, someone is the parent of daughters, I think that’s really troubling and upsetting to a lot of folks.

Ray Bogan: Now, for purposes of this conversation, let’s look forward and say that these rules survive a court challenge and are ultimately finalized. How could that impact Arizona’s ability to set new rules themselves? Or let’s say Arizona wants to continue doing some type of other rules, in what way could Arizona potentially be punished for that? And how could that impact Arizona’s ability to run its colleges and schools?

Attorney General Brnovich: Well, this is the the bigger problem is that we are seeing the federalisation of every single problem now in this country. And, you know, there was a time not that long ago, when eliminating the Federal Department of Education was part of the Republican Party platform. Because there was a recognition that as the federal government gets bigger and bigger and out of touch, you have less accountability. And parents don’t have as much input into how their schools are being run. And so you know, Lyndon Johnson used to say that if you let a boy in your front yard, the next day is on your porch, and the day after that he’s shacking up with your wife and LBJ used to another term for that. But the point is, is that it whether it’s at the local level or the state level, once you see that authority to the federal government, you are not going to get it back. And then you end up with a government that’s less accountable, that’s more bureaucratic and quite frankly, is not very efficient.

Ray Bogan: Now, guidance like this from the federal government often goes completely one way or the other, depending on whether it’s a liberal administration or a conservative administration. But what do you think is a potential middle ground here that lets states make their own decisions, but at the same time allows people who have a gender identity that is different than their birth gender compete and use locker rooms in a way that makes them feel comfortable?

Attorney General Brnovich: Well, we don’t want anyone discriminated against, but we also don’t want anyone to have an unfair advantage. And we don’t want our sons and daughters to feel uncomfortable when they’re in a middle school locker room or bathroom. And so, you know, I think there are policy makers that can make decisions as far as you know, having, you know, maybe a unisex bathroom, or requiring, you know, someone to use the shower. You know, we’re, you know, that matches their biological identity. You know, but at the end of the day, I think the more fundamental problem, you know, to someone that’s, you know, been fighting against the overreach the Biden administration and before that the overreach of the Obama administration is I think we all need to recognize that these are issues that should be left up to local school boards and parents that are directly impact and not some unelected bureaucrat in Washington DC at the Department of Education, and surely not President Biden.