Wicker, Cochran: Obama Transgender Directive Lacks the Force of Law
In Letter, 25 Senators Say Federal Law Does Not Require Schools to Follow Guidance
WASHINGTON – U.S. Senators Roger Wicker (R-Miss.) and Thad Cochran (R-Miss.) today signed a letter clarifying that federal law does not require states and schools to adhere to a new transgender directive issued by the Obama administration.
Signed by 25 Senators, the letter to Attorney General Loretta Lynch and Education Secretary John B. King, Jr. states that the administration has no legal justification to dictate to the nation’s public schools which restrooms, locker rooms, and showers transgender students may use. The administration late last week issued transgender guidelines to schools and threatened to withhold federal funding to schools and states that do not adhere to the guidance.
“As I have stated before, these are local issues best decided by those who live in our communities,” Wicker said. “A clear understanding of the law shows that the Administration does not have the authority to act like a National School Board. It is wrong to threaten to withhold federal funding from schools that choose to handle this matter in their own way.”
“This another example of federal overreach by the Obama administration that should be challenged. State and local officials are best equipped to make decisions regarding student facilities in a practical, safe and respectful way,” Cochran said.
The letter was led by U.S. Senator Lamar Alexander (R-Tenn.), chairman of the Health, Education, Labor, and Pensions Committee. It stresses that the “guidance” issued to schools lacks the force of law. It also points out that the Senate rejected similar transgender mandates amendment to the Every Student Achieves Act last year.
“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 letter states.
It goes on to say, “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.”
The following is the full text of the Senators’ letter:
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.
In addition to Cochran and Wicker, the Alexander letter was signed by Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Senators John Barrasso (R-Wyo.), John Boozman (R-Ark.), Richard Burr (R-N.C.), Bill Cassidy (R-La.), Dan Coats (R-Ind.), Bob Corker (R-Tenn.), Tom Cotton (R-Ark.), Steve Daines (R-Mon.), Michael Enzi (R-Wyo.), Joni Ernst (R-Iowa), Orrin Hatch (R-Utah), James Inhofe (R-Okla.), Johnny Isakson (R-Ga.), James Lankford (R-Okla.), John McCain (R-Ariz.), David Perdue (R-Ga.), Mike Rounds (R-S.D.), Tim Scott (R-S.C), Thom Tillis (R-N.C.), John Thune (R-S.D.), and Pat Roberts (R-Kan.).