DOE refuses to talk about transgender school restroom rules

WASHINGTON—The Obama administration is refusing to cooperate with lawmakers who want Department of Education (DOE) officials to answer questions about its recent transgender restroom directive.

DOE representatives were set to testify before a Senate subcommittee on July 6 to explain the controversial “guidance” issued last month to all public schools. A joint letter from DOE and the Department of Justice directed schools to allow students to use the restroom of their choice—regardless of their biological sex—or risk losing federal funding.

This week DOE officials told Sen. James Lankford, R-Okla., chairman of the Senate Subcommittee on Regulatory Affairs and Federal Management, they will not be able to make the hearing and offered no explanation or alternative dates.

Lankford told me he has repeatedly called the DOE without success.

“The agencies are balking at that time period, and we are currently trying to reschedule it for later,” he said. “We will continue to do that. It is extremely important.”

Both the DOE and the Department of Labor were originally scheduled to testify on June 9 about their guidance practices, but the Senate adjourned early.

The Senate will recess on July 15 and will not return until September. That leaves few days to reschedule a hearing.

Administration officials routinely appear before Congress, so non-cooperation is unusual, particularly on an issue of ongoing public interest.

“Not only is the Obama administration twisting the law, now they’re not willing to even answer any questions about what they’ve done,” said Greg Scott, a spokesman for Alliance Defending Freedom. “They’ve jammed a policy down to every school district that affects millions of students around the country.”

The sweeping May letter redefined the meaning of sex for more than just restrooms: Under the new guidance, schools must allow male students to use the girls’ locker room facilities without requiring them to produce a birth certificate or medical diagnosis. The new standards say as soon as a parent or legal guardian claims a child’s gender identity differs from previous records, the school must treat the student accordingly.

The new rules are not legally binding and are packaged as a clarification of existing laws. But Lankford said this new guidance for schools is a wholesale change from what law warrants. The Obama administration is using the directives to promote its agenda while circumventing Congress, Lankford said.

“They changed the definition from sex discrimination to gender identity and gender discrimination,” Lankford said. “No one is going to convince me that when Richard Nixon signed this law in 1972 he was thinking about gender identity questions.”

Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. The new guidance says schools should interpret the word “sex” to include gender identity.

But Congress has never legislatively approved a definition of sex and the judicial system has not ruled sex to include gender identity either.

Eleven states sued the Obama administration after getting the new guidance, claiming it had no basis in law and would create seismic changes in the operation of America’s school districts.

Some lawmakers, including Rep. Vicky Hartzler, R-Mo., are urging their states to join in the fight.

“Our students deserve to be represented against such egregious violations and misinterpretations of the law,” she said in a letter to Missouri Attorney General Chris Koster.

Lankford said it is nothing new for a president to issue a guidance to clarify rules and regulations, but these new directives are dangerous and unprecedented: “When a guidance makes a new policy that is inconsistent with any previous law or issues we have addressed in Congress before, that’s not guidance, that is creating law out of thin air.”