Administration
Office 614-466-4320
Fax 614-466-5087
30 E. Broad Street, 17th Floor
Columbus, OH 43215
www.OhioAttorneyGeneral.gov

May 27, 2016
The Honorable Loretta E. Lynch
United States Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
The Honorable John B. King, Jr.
Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202
Dear Attorney General Lynch and Secretary King,
Subordinates within your Departments on May 13, 2016 released what they styled a “Dear
Colleague” letter decreeing certain “legal obligations” of schools “at all educational levels,
including school districts, colleges, and universities” that receive federal funding.
The letter purports to recite rules that schools must follow concerning access for transgender
students to “restrooms, locker rooms, shower facilities, housing,” and the like. For example,
with regard to “Restrooms and Locker Rooms” (the bolding and capitalization is from the
“Dear Colleague” communication itself), the letter states that a school “must allow transgender
students access to such facilities consistent with their gender identity” as determined by the
“individual’s internal sense of gender,” and further specifies that “[a] school may not require
transgender students … to use individual user facilities when other students are not required to
do so.”
This attempt to nationalize and politicize the way schools address gender identity issues down to
the level of school locker rooms, showers, and bathrooms might be dismissed as simple
bureaucratic arrogance were it not so potentially harmful to our civic discourse and to the
important rights and needs of all the school children involved. Your assistants apparently have
concluded that people of good faith across this country, informed by the basic decency and
common sense of their communities, cannot be trusted to work through any particular locker
room problems of this sort; instead, the premise of the letter is that local solutions undertaken in
good faith must be displaced by edict from Washington, D.C.
As the Chief law officer of the State of Ohio, I write to advise you that this judgment of the
“Dear Colleague” letter is wrong, both in its elitist disregard for our 21st Century communities
and as a matter of law. The letter says that a school’s “desire to accommodate others’ discomfort
cannot justify a policy” other than that required by the letter’s “guidance” – but in fact, our State
and our communities are much better equipped on these matters than even the most well
intentioned federal “Principal Deputy Assistant Attorney General” or “Assistant Secretary” to

 advance the important dignity and privacy interests of every student-- of all students -- at a
school in our State.
The “Dear Colleague” letter reports, with emphasis, that “ED and DOJ (the Departments) have
determined that this letter is significant guidance.” Significant it may be, but it is not law. To
impose a national policy as “significant” as the writers would desire, proponents must obtain
passage of legislation by both houses of Congress that then is submitted to the President for
signature or veto. Further, the federal government cannot use its spending authority to impose
administrative conditions on States, at least absent clear and explicit statutory text. Here,
Congress has not enacted a federal decree along the lines the letter advocates, and I am not aware
that the Administration has even proposed such legislation. Indeed, the directives have not even
gone through the process of notice and comment rulemaking as would be required by the
Administrative Procedure Act were the rules consistent with and authorized by legislation.
Rather than heavy-handed federal bureaucratic action guaranteeing prolonged controversy and
litigation over locker room regulation, we need to let our communities sort out how best to
advance the dignity and privacy interests of all students as appropriate to the differing contexts
presented from one circumstance to the next. I urge you to take a step back and reconsider the
unlawful and ill-advised federal decree that the Dear Colleague letter seeks to impose.
If your Departments act against our State contrary to law, I will defend vigorously the interests
of the State of Ohio. Again, the federal government does not need and is not empowered to
make every decision for every social institution in our country: There are many, many questions
that, consistent with constitutional guarantees, are best left to the decent, commonsense judgment
of individuals and communities at the state and local level. Under the laws of the United States,
how schools work to handle locker room questions involving students’ gender identities is one
such matter.
Very respectfully yours,

Mike DeWine
Ohio Attorney General

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