Luther Strange to State Board of Education: Ignore Obama’s transgender bathroom rules

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AL AG Luther Strange

Alabama Attorney General Luther Strange sent a letter to the State Board of Education in response to many questions from Alabama’s school systems on the ramifications of President Obama‘s recent executive actions requiring public schools to allow transgender students to use the restrooms and locker rooms corresponding to their preferred gender.

In the letter, Strange advised the school board to simply ignore the president’s directive until the issue is taken up and settled in federal court.

“Although the (federal guidance) letter states that it ‘does not add requirements to applicable law,’ it clearly purports to change the law by redefining the word ‘sex’ in Title IX of the Education Amendments of 1972 to mean ‘gender identity,’” wrote Attorney General Strange. “…Title IX is about discrimination ‘on the basis of sex,’ not gender identity.”

AG Strange filed suit on behalf of the state against the Obama administration last week, joining 10 other states in pushing back against the executive order.

“The Obama administration has taken government overreach to an unprecedented level, directly challenging the personal privacy of America’s school children while threatening to withhold funds from schools which refuse to accept this form of coercion,” said Strange in a press release announcing the lawsuit.

“President Obama does not have legal grounds to rewrite the law. Congress was absolutely clear that federal law allows schools to have separate facilities based on the ‘sex’ of the individual, not their gender preference.  This disturbing attempt to transform America’s classrooms into laboratories for the Obama administration’s social experiments will not stand up to the test of law.”

The issue has become increasingly heated in the weeks following President Obama’s order, with everyone from presumptive GOP nominee Donald Trump to Alabama Today’s own Apryl Marie Fogel weighing in on the subject.

Find the entire text of the letter to the State Board of Education below.

Dear Members of the Board of Education:

My Office has received numerous inquiries from educators and others about the “significant guidance letter” issued by the United States Department of Education and Department of Justice on May 13, 2016. Although the letter states that it “does not add requirements to applicable law,” it clearly purports to change the law by redefining the word “sex” in Title IX of the Education Amendments of 1972 to mean “gender identity.”

It is my understanding that principals and teachers in Alabama have considerable discretion in how to accommodate transgendered students. The question of how to accommodate a transgendered student is presently resolved on a case-by-case basis in consultation with the student’s parents, teachers, and principals. But it appears that the most frequent accommodation is to encourage the student to use a single-occupancy bathroom. Unfortunately, that commonsense practice would be inconsistent with the “significant guidance letter,” which states that “a school may not require transgender students . . . to use individual-user facilities.”

In my opinion, the guidance letter is based on a legally erroneous interpretation of Title IX. Title IX forbids disparate treatment “on the basis of sex.” 20 U.S.C. §1681(a). But Title IX provides that “nothing contained herein shall be construed to prohibit any education institution . . . from maintaining separate living facilities for the different sexes.” 20 U.S.C. § 1686. Similarly, the 1975 regulation that implements Title IX expressly authorizes “provid[ing] separate toilet, locker room, and shower facilities on the basis of sex.” 33 C.F.R. § 106.33.

In other words, Title IX is about discrimination “on the basis of sex,” not gender identity. Unlike subjective gender identity, sex is an objective biological reality. The American Psychological Association defines “sex” as “a person’s biological status” based on indicators such as “sex chromosomes, gonads, internal reproductive organs, and external genitalia.” Gender, on the other hand, “connotes cultural or attitudinal characteristics distinctive to the sexes, as opposed to their physical characteristics.” Hopkins v. Baltimore Gas & Elec Co., 77 F.3d 745, 749 n.1 (4th Cir. 1996).

To redefine “sex” as “gender identity,” the guidance letter erroneously relies on judicial decisions that are distinguishable and unpersuasive. Judicial decisions in which transgender plaintiffs have been allowed to pursue discrimination claims have involved penalizing the transgendered person for failing to look, act, or dress the way “real” men or women are culturally expected to. Most of these cases did not even mention bathroom usage, and none of them turned on bathroom-related claims. The guidance letter ignores, however, the numerous courts that have held that schools may provide separate bathrooms on the basis of biological sex differences. E.g., Jeldness v. Pearce, 30 F.3d 1220, 1228 (9th Cir. 1994); R.M.A. v. Blue Springs R-IV Sch. Dist., 477 S.W.3d 185, 187 (Mo. Ct. App. 2015); Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ., 97 F. Supp. 3d 657, 670 (W.D. Pa. 2015); Doe v. Clark Cty. Sch. Dist., No. 206-CV-1074-JCM-RJJ, 2008 WL 4372872 at * 4 (D. Nev. Sept. 17, 2008). Because the guidance letter is based on an erroneous view of Title IX, I believe the threat that schools will lose federal funding for failing to comply with the guidance is ultimately an empty one.

On May 25, I filed suit on behalf of Alabama, along with officials from ten other States, to prevent the Department of Justice and Department of Education from enforcing the guidance letter. This lawsuit will determine whether the Department of Justice and Department of Education have the authority to implement the policy announced in the guidance. I have attached a copy of our complaint to this letter. Until the lawsuit is resolved, I would encourage educators to simply ignore the guidance letter.

Sincerely,

Luther Strange

Attorney General

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