The States Begin to Fight Obama’s Transgender “Guidance”

On Friday, the Obama Administration issued a sweeping transgender bathroom “guidance” to all public schools in the entire nation that receive federal funding.  The “significant guidance,” which took the notorious form of a “dear colleague” letter, reflects the Obama Administration’s strained—and, indeed, actually implausible—reading of the Title IX text that wholesale substitutes “gender identity” for the statutory word, “sex.”  The result of this bureaucratic overreach would be to “instruct” all public schools that students who self-identify as a member of the opposite sex ought to have unrestrained bathroom/locker room access of their choosing, and should presumptively (a rebuttable presumption, for you law types) be eligible for participation in the sports activities of one’s self-identified gender.

I have very little to add on the merits beyond what Ed Whelan of the Ethics and Public Policy Center has posted at National Review‘s “Bench Memos” blog here, here, here, here, and here.

Besides the Obama Administration’s implausible statutory construction of Title IX, there is also the possible issue of using the threat of revoking federal education funding as a coercive measure to force the states and localities to take a certain action against their will.  In the landmark Obamacare case (NFIB v. Sebelius) of 2012, seven of the nine justices—including liberals Stephen Breyer and Elena Kagan—agreed that the law’s attempt to coerce the states to greatly expand their Medicaid programs at risk of losing all Medicaid funding amounted to an unconstitutional “gun to the head” (to borrow Chief Justice Roberts’ phrasing).  Considering how deeply embedded the feds are in local public school district funding, there is no obvious reason to think of the transgender “guidance”—if indeed actually intended to be similarly coercive—as being any different.

On Tuesday, the attorneys general of three states—Oklahoma, Texas, and West Virginia—penned a joint reply letter to the U.S. Departments of Education and Justice.  (I expect Texas to write its own letter next week.)  You can read the full letter here.  The letter seeks “clarification” from the feds on five distinct points:

  1. Whether an entity receiving federal funding must follow the “significant guidance” in order to remain in compliance with Title IX and continue to receive any federal funding at all.
  2. Whether all recipients of federal funding are legally bound to follow the federal government’s diktat to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
  3. Whether there is actually any existing statute, regulation, or court decision—in other words, any legal justification at all—that mandates that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
  4. Whether Title IX now requires that schools indeed administer their athletic programs according to each student’s subjective “internal sense of gender,” and whether schools are now barred from requiring any sort of objective verification of a student’s sex.
  5. Whether a school may now require that a student use only the bathrooms and locker room for the gender with which the student identifies.

Points (1) through (4) are logical enough; point (5) is more of a clever lawyering tactic that seeks to highlight the inevitable hypocrisy resultant from such a strained reading of Title IX.  Specifically, the states’  letter notes that the feds’ “dear colleague” letter says “…that once a student’s ‘internal sense of gender changes, that student must be allowed to use the bathroom of their choosing.  It would be an odd result if this requirement meant that a transgender student could use either the boy’s or the girl’s restroom/locker room, whereas other students would remain bound to use one or the other.”

The states requested that the federal government respond within one week.  If Texas Lieutenant Governor Dan Patrick’s Twitter is any indication, this will be a fun battle to watch unfold.

About the author

Josh Hammer

Texas-based conservative activist. Sen. Mike Lee/#CruzCrew alum. Constitution, free enterprise, liberty, sovereignty, moral clarity, counter-jihadism. Follow me on Twitter at @josh_hammer.

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