Obama administration defends transgender directive

WASHINGTON—The Obama administration this week publicly defended its transgender restroom directive and indicated it believes courts will eventually rule in its favor on the issue.

Amy McIntosh, principle deputy assistant secretary at the Department of Education (DOE) made the remarks during a Senate Homeland Security and Governmental Affairs subcommittee hearing on regulatory affairs. It was the first time the administration has answered questions about the controversial guidelines.

“I was disappointed with what I heard today,” said Sen. James Lankford, R-Okla., chairman of the subcommittee. “The Department of Education stated that they will honor the court orders that have already blocked their regulatory overreach, but they do not acknowledge that they have overstepped their legal boundaries.”

In May, the department issued “bathroom, locker room, dorm room” guidelines that allowed persons who identify as transgender to use the facilities of their choice at all public schools. Although not legally binding, the directive came in a joint letter from the Education and Justice departments and indicated uncooperative schools could lose their federal funding.

At least 23 states sued the federal government over the directive, and last month a federal judge in Texas temporarily blocked implementation in a case involving 13 of those. In a 38-page opinion, U.S. District Judge Reed O’Connor said the administration’s process didn’t follow the law and twisted the original intent of Title IX, the non-discrimination law officials reinterpreted.

“It cannot be disputed that the plain meaning of the term sex … meant the biological and anatomical differences between male and female students as determined at their birth,” O’Connor wrote. “Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex.”

LGBT advocates said the decision violated the civil rights of transgender students and put them at higher risk of discrimination.

On Thursday, Lankford noted many local school districts were already engaged in finding accommodations and implementing protections for transgender students. McIntosh agreed but said since that is not universally true, the directive was necessary.

McIntosh, a political appointee who did not go through Senate confirmation, said the administration respectfully disagrees with the ruling but is complying with it: “I don’t think the last legal chapter has been written here.”

Courts have issued at least six decisions on whether Title IX applies to transgender persons. Five rulings said it does not, including a 2009 opinion from the 9th U.S. Circuit Court of Appeals that said such claims are “doomed.”

The one ruling in favor of a transgender student, G.G. v. Gloucester County School Board, is on appeal to the U.S. Supreme Court.

Matt Sharp, an attorney with Alliance Defending Freedom (ADF)—which in a brief asked the high court to take up the Gloucester case—said whether it’s Gloucester or another case, the Supreme Court will eventually have to settle the matter. In numerous court filings, ADF has argued the five decisions upholding the original intent of Title IX are correct.

Sharp said McIntosh’s evasive answers at Thursday’s hearing came as no surprise: “They didn’t want accountability then, and they don’t want it now.”

A Department of Education official was originally scheduled to testify in early July, but the agency backed out in late June, pushing the proceeding until after Congress returned from a seven-week recess.

Lankford told me McIntosh’s testimony raised more questions than answers. He plans to send a follow-up letter to the agency.

“I understand that regulatory guidance is a useful and needed tool to transmit key information to regulated parties,” Lankford said. “However, we must address the fact that, at times, agencies use guidance as a way to get around the law.”