GOP Senators: Obama Administration Acting Like National School Board with Bathroom Edict

WASHINGTON, May 19 – A group of 25 Republican senators today told the Obama administration that it cannot tell the nation’s 100,000 public schools how they must answer the question of which bathrooms, locker rooms and showers transgender students may use.

“Every transgender person is someone’s child and should be treated with respect.  But that does not justify a federal executive agency acting as a national school board telling 100,000 public schools how to resolve this issue,” the senators wrote in a letter to U.S. Attorney General Loretta Lynch and U.S. Secretary of Education John King, after their departments issued guidance Friday dictating bathroom policies for the nation’s 100,000 public schools.

“Deciding which bathroom, locker room, or shower transgender students should use is the kind of issue the states, parents, school boards, communities, students, and teachers should work out in a practical way with a maximum amount of respect for the individual rights of the students who are transgender as well as the rights of those who are not.  If the solutions developed by states and communities violate the equal protection guarantees of the U.S. Constitution or federal civil rights laws, federal courts are available to protect students’ rights.”

They continued: “It is not appropriate for a federal executive agency to issue “guidance” for every school as if it were the law. Article I of the U.S. Constitution gives Congress the exclusive right to make laws.” 

Senate education committee Chairman Lamar Alexander (R-Tenn.) and Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) sent the letter along with Senators Orrin Hatch (R-Utah), Thad Cochran (R-Miss.), James Lankford (R-Okla.), Johnny Isakson (R-Ga.), Michael Enzi (R-Wyo.), James Inhofe (R-Okla.), John McCain (R-Ariz.), Dan Coats (R-Ind.), Bill Cassidy (R-La.), Mike Rounds (R-S.D.), John Barrasso (R-Wyo.), John Boozman (R-Ark.), Richard Burr (R-N.C.), Thom Tillis (R-N.C.), John Thune (R-S.D.), Bob Corker (R-Tenn.), Pat Roberts (R-Kan.), Steve Daines (R-Mont.), Joni Ernst (R-Iowa), Tom Cotton (R-Ark.), Tim Scott (R-S.C.), David Perdue (R-Ga.), and Roger Wicker (R-Miss.).

The full text of the letter follows:  

Dear Attorney General Lynch and Secretary King,

Every transgender person is someone’s child and should be treated with respect.  But that does not justify a federal executive agency acting as a national school board telling 100,000 public schools how to resolve this issue.

Deciding which bathroom, locker room, or shower transgender students should use is the kind of issue the states, parents, school boards, communities, students, and teachers should work out in a practical way with a maximum amount of respect for the individual rights of the students who are transgender as well as the rights of those who are not.  If the solutions developed by states and communities violate the equal protection guarantees of the U.S. Constitution or federal civil rights laws, federal courts are available to protect students’ rights.

It is not appropriate for a federal executive agency to issue “guidance” for every school as if it were the law. Article I of the U.S. Constitution gives Congress the exclusive right to make laws.  In some cases, executive agencies may issue regulations, but these regulations must be authorized by law and are subject to strict procedural requirements.  The Supreme Court, Congress and the Obama administration itself all have made clear that such guidance does not have the force of law.  This issue involves circumstances that were never envisioned by existing laws.  During Senate debate last year on the Every Student Succeeds Act, an amendment was offered to do, by statute, what the administration is now trying to enforce in guidance as if it were the law.  The Senate voted not to adopt the amendment.

It may be appropriate for the U.S. Department of Education to answer questions or issue guidance about its opinion of the existing law.  But federal law does not require states and school districts to follow that guidance.  Until Congress or the courts settle the federal law, states and school districts are free to devise their own reasonable solutions.

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