Justice and Education department officials Friday sent a “significant guidance letter” to educators throughout the country advising that public schools should allow transgender students to use the bathroom and locker facilities of their choosing—the one for boys (and men) or the one for girls (and women). This is how someone whose biological sex is male but who identifies himself (or rather, herself) as a girl may use the facilities for girls at a school. And that is a choice that must be provided for, otherwise the school, the letter makes clear, would be in violation of federal law barring discrimination against transgender students—a view of the law the administration quietly embraced in 2014 but which now, in the final months of the Obama presidency it is hastening, it seems, to apply every which way it can. A school’s failure to comply with the guidance letter has a price—loss of federal funds.
Late Friday afternoon Oklahoma Attorney General Scott Pruitt wrote a letter to the Justice and Education officials advising that “if you attempt to enforce this . . . letter on schools in the State of Oklahoma, we will vigorously defend the State’s interests.” Pruitt’s letter sets forth the grounds of defense: That without warrant the administration has redefined “sex” to mean “gender identity”; that it has forced this definition on parents, students, and communities because it has “deemed unjustifiable any discomfort that [transgender students] may express,” thus elevating “the status of transgender students over those who would define their sex based on biology and who would seek to have their definition honored in the most private of places”; and that it compels schools to enforce the new definition of sex “by conditioning receipt of federal funds on compliance” with the letter—”an ultimatum: take it or lose it,” which is not a “real choice” for many schools.
Pruitt concludes by saying that the administration’s actions are unlawful and “represent the most egregious administrative overreach to date. You have taken a public policy issue that must, by our constitutional design, be worked out in the laboratory of democracy and enforced it on all people. And you have done so through a misuse of the spending power.”
State attorneys general in the age of Obama have devised state coalitions to challenge federal overreach. Most notably, 26 states have joined in taking on the president’s executive action on immigration, now before the Supreme Court. Watch for a new coalition to be formed, in the event of actions taken to enforce the guidance letter.
