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Changes To School Bathroom Statute Must Go Through Congress, Paxton Says

RENEE MONTAGNE, HOST:

The NBA gave North Carolina an economic elbow to the gut yesterday. It is pulling next year's All-Star Game from Charlotte. That move is a protest against North Carolina's controversial bathroom bill. Among other things, that law bans transgender people from using restrooms in schools and government buildings that don't match the gender on one's birth certificate.

North Carolina is now suing the Obama administration for sending out a directive ordering schools to allow transgender students to use the facilities that fit their identity. We're going to hear now from the man leading a legal challenge that includes several other states. We reached Ken Paxton at the Republican Convention in Cleveland. As attorney general of Texas, Paxton filed a lawsuit arguing the president's directive is an unconstitutional overreach.

KEN PAXTON: In the '60s and '70s, Congress passed Title 7 and Title 9 dealing with gender issues. And they define the word sex in a specific way. It did not include this new definition that the administration is trying to push into the schools. And so all we're arguing is that the president doesn't have the authority to change existing statute.

If he wants existing statute changed, he can't go through an agency like the Department of Education or the Department of Labor. He has to go through Congress. That's the way our Constitution's written. Unfortunately for him, he doesn't get to make law.

MONTAGNE: Now, a federal court in Virginia has ruled already in favor of a transgender student in this situation. Basically, that court interpreted sex discrimination to include gender identity. Are you worried that this has a big implication for your lawsuit and others like it?

PAXTON: Well, it's a separate circuit. So that's the 4th Circuit. We're in the 5th Circuit. And we're hopeful that the 5th Circuit will stick to what the actual statute says, instead of adding in additional words that aren't in the statute which we think the 4th Circuit added in.

MONTAGNE: And what are the words?

PAXTON: Well, the words transgender are not defined in the statute. Gender identity and transgender have been used in other statutes. And Congress had the opportunity. And I think there have been congressional representatives who have tried to make that change. It has not occurred.

MONTAGNE: Let me ask you - what are your concerns, and the concerns of the people that you represent, about what would happen if transgender students were able to enter in and use the bathrooms or locker rooms that match their own gender identity.

PAXTON: So I have two concerns. One is - we're not following the law. And the president can't go beyond the law. So everybody - he's not a king. He said it himself. Second of all, I went and met with about a hundred parents from the Fort Worth Independent School District - Democrat, Republicans - across all ethnic and cultural lines.

And they're upset because they are concerned about the safety of their children. In my opinion, what should happen is what already does happen in Texas. And that is - that schools deal with this on an individual basis. It's never really been an issue in my opinion. This is a solution in search of a problem.

MONTAGNE: Parents told you that they're worried? What did they tell you?

PAXTON: They said that - especially, parents who have daughters in school are concerned about boys coming into their daughters' locker room, coming into the girls showers, having the opportunity to spend the night in the same room. Those are legitimate concerns that cross party lines and that cross every type of cultural or ethnic line. They are concerned parents. If they have kids in the school, particularly girls, they have concern.

MONTAGNE: Ken Paxton is attorney general of Texas and a delegate to the Republican National Convention in Cleveland, which you could probably figure out from the noise behind him of that convention. Thank you very much for talking with us.

PAXTON: Hey, thank you for having me. I really appreciate it. I hope you have a great day. Transcript provided by NPR, Copyright NPR.