The Republican attorneys general of Texas, Oklahoma and West Virginia say the Obama administration hasn’t given schools around the country enough guidance on how to handle transgender students, and said more details are needed so schools can understand what specific actions, or non-actions, will put their federal funding at risk.
“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,” Texas Attorney General Ken Paxton said in a statement announcing the letter Tuesday.
“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,” he added.
Paxton was joined by Oklahoma Attorney General Scott Pruitt and West Virginia Attorney General Patrick Morrisey in their letter, which asked the Justice and Education departments whether refusing to follow the new guidance will put the federal education funding their respective states receive in jeopardy.
The Justice and Education departments sent a guidance to schools nationwide last week directing them to allow transgender students to use the restroom facility that corresponds with their gender identity. The federal guidance was issued in response to North Carolina’s new law that mandates transgender individuals use the restroom facility that corresponds with their birth gender, and prevents local municipalities from passing legislation allowing for anything else.
The attorneys general asked several specific questions, including whether the Obama administration believes an entity receiving federal funding follow “must” follow the guidance in order to be in compliance with Title IX and be eligible for federal funding. It asked whether a school still be “in compliance” with Title IX despite “noncompliance” with the guidelines.
According to Paxton, Pruitt and Morrisey, the federal guidance uses the word “must” 15 times, and the words “required” and “requirement” 10 times. The letter said those words are confusing and asked if recipients of federal funding must satisfy the requirement to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
The guidance also said it does “not add any requirements to applicable law.” But the attorneys general asked what “existing statute, regulation, or binding court decision mandates that schools receiving federal funding must ‘treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations?'”
When it comes to gender identity, the attorneys general also want to know if it is now a Title IX requirement that schools administer all programs according to “each student’s subjective ‘internal sense of gender.'”
And finally, they asked if a school must require that students can “use only the bathroom/locker room for the gender with which that student identifies?”
Paxton, Pruitt and Morrisey told the Obama administration they want answers by May 24.
