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Transgender ‘Guidance’ Letter: AGs Call Out Feds for Talking Out Two Sides of Their Face

The Texas Attorney General and two other state attorneys general have called out the civil rights heads of the U.S. Department of Education (DOE) and the U.S. Department of Justice (DOJ) for talking out two sides of their face about states’ compliance with their transgender policy “guidance.” They ask questions about the mandatoriness of compliance, and about conflicting statements and applications of this letter of “guidance.”

The letter from the state attorneys general is attached below.

On Friday, May 13, the DOE Assistant Secretary for Civil Rights and the DOJ Principal Deputy Assistant Attorney General for Civil Rights, sent a “Dear Colleague Letter on Transgender Students” to state and local agencies that receive federal financial assistance from the DOE.

A head of the Office of Civil Rights in the DOE thus joined with the White House legal arm, the DOJ, and sent a letter which they represented should serve as “significant guidance.”

Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. These funding recipients are all subject to Title IX’s requirements.

The common sense implication from the federal government for schools that do not comply with the federal policy – risk losing federal funding and lawsuits.

The letter to Assistant Secretary Catherine Lhamon and Assistant Attorney General Vanita Gupta came from Texas AG Ken Paxton, Oklahoma AG E. Scott Pruitt, and West Virginia AG Patrick Morrisey. These AGs join to ask the federal agencies for clarification with regard to “the effect you intend this letter to have.”

The AGs urge that the definition of “significant guidance” found in the Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices in the Federal Register, “leads us and others to understand that your Departments will consider any entity not adhering to this ‘significant guidance’ as out of compliance with Title IX, and thus subject to loss of federal funding.” The AGs ask for specific answers with regard to the federal funding ramifications of compliance or non-compliance with the “guidance.”

The AGs note that the Good Guidance Practices Bulletin states that “given their legally nonbinding nature, significant guidance documents should not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or ‘‘requirement[.]”  The AGs call out the federal civil rights department heads for “us[ing] the word ‘must‘ 15 times, and the words ‘required‘ and ‘requirement‘ 10 times.” (emphasis added)

Based on the language in the letter, they conclude that the agencies intend “to bind recipients of federal funding to compliance.”

They also ask for clarification. The AGs ask whether the agencies’ interpretation of “sex” for purposes of discrimination in Title IX, will be defined by them as “gender identity.” Specifically they write, “Must recipients of federal funding … ‘treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations'”? (emphasis added)

The attorney generals of these states also note that the letter claims it “does not add requirements to applicable law” but add, “we are aware of no provision of Title IX, nor any decision of any court that would be binding in our states, that mandates that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” (emphasis added).

They make the fourth point that the letter defines “gender identity” as “an individual’s internal sense of gender” (bold emphasis in the letter).

They ask would this require teachers to refer to a student as “he” instead of “she,” use bathrooms and locker rooms for the opposite sex, and “even to let the student play sports for a  team of the sex opposite of that which they previously ‘identified’ (unless, apparently, there is ‘sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”) “Is it now a requirement of Title IX that schools administer their programs according to each student’s subjective ‘internal sense of gender,’ and that Title IX bars schools from requiring any sort of objective verification of a student’s sex?”

Lastly the AGs seek clarification, “May a school require that a student use only the bathroom/locker room for the gender with which that student identifies?”

They note the inconsistencies, “Your letter states that once a student’s ‘internal sense of gender’ changes, that student must be allowed to use the bathroom of their choosing.” The AGs conclude, “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. Indeed, it would conflict with your statement that ‘a school must not treat a transgender student differently from the way it treats other students of the same gender identity,’ since nontransgendered students would have less access to fewer restrooms/locker rooms than transgendered students. We assume, therefore, that a school could require the student to use only the bathroom for the gender with which the student at that moment in time identify.” (emphasis in the letter)

As is made clear by the U.S. Department of Education on its Office for Civil Rights’ (OCR) website, “The U.S. Department of Education’s Office for Civil Rights (OCR) enforces, among other statutes, Title IX of the Education Amendments of 1972.”

The OCR website asserts it has enforcement jurisdiction over “approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums.” They also watch “vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.”

“The so-called ‘significant guidance’ issued by the Obama Administrations raises more questions than it answers, just as it creates concerns among anyone who believes sex is a biological fact and not a personal preference,” said AG Ken Paxton in a statement obtained by Breitbart Texas.

The top lawyer for the Lone Star State added, “As billions of dollars appear to be at stake based upon schools’ compliance with this guidance, the Obama Administration must be extremely clear about what is and isn’t allowed, and explain how their actions do not add requirements to the law, as their letter claims.”

The Attorney Generals state in the conclusion of their letter, “We seek responses to these important clarifying questions by no later than close of business on May 24, 2016.”

 Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2

 

Letters From AGs to Civil Rts Div of US Depts of Educ and Justice

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