President Obama’s requirement that public schools allow transgender students to use the bathroom of their choosing is an attempt “to create law out of thin air,” according to Sen. James Lankford, because Congress recently chose not to include such a policy in a recently passed education reform.
“The proposal in today’s guidance is so significant and groundbreaking, it should only be considered by legislation, preferably at the local level, instead of through a Department of Education guidance letter,” the Oklahoma Republican said. “Even though the department will say that guidance does not have the force of law, every school district in the country will be terrified of going against a federal agenda. This is threatening and intimidating and has no place in our government.”
Schools are expected to implement the policy rather than risk the loss of federal education funding. Lankford is an evangelical Christian with socially conservative political preferences, but he rooted his opposition to the new transgender student policy in a process argument.
The freshman senator has repeatedly criticized the Education Department for acting beyond its congressional mandate and implementing substantive policy changes without going through a legally required regulatory process.
Congressional lawmakers negotiated a major education reform bill last year that could have been a vehicle for mandating the president’s preferred policy, Lankford noted.
“During that debate, transgender student policy was discussed, but Congress ultimately decided to defer to states and localities,” he said. “This proposal has many unintended consequences for safety and gender fairness, which are completely being ignored in this conversation.”
The freshman senator voted against the confirmation of Education Secretary John King because King defended the department’s use of the guidance, also known as Dear Colleague letters.
“Our goal with the guidance is to convey our interpretation of the law,” King said during a Senate hearing.
Lankford rejected that explanation. “Some agencies complain that the rule-making process is too long and requires too much public input, so it’s easier just to say the new rules simply interpret an existing rule and then skip the compliance with the Administrative Procedures Act that’s required for a new rule,” he said during a floor speech in March.
“It’s a complete irony that agencies see regulatory compliance as too burdensome so they impose new regulatory guidance on states, local governments, tribes and private institutions at a faster pace, and those institutions have no way to fight the rules, only comply.”
