Diaz, Bethany

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Samantha Dravis <sdravis@ruleoflawdefensefund.org>
Wednesday, May 18, 2016 5:57 AM
Samantha Dravis
Materials on Obama Letter and RLDF Call Thursday
LettertoDOEandDOJreCiarification .pdf; TX v DOE - Complaint (05-16-16) 112[1].docx

AG Staff,
Attached as an fyi is a letter sent by the offices of Generals Pruitt, Paxton and Morrisey to the DOE regarding Obama's dear
colleague letter/bathroom directive. Also attached is a complaint set to be filed next week by General Paxton's office
regarding the same. If you have questions or to get involved in the complaint, contact Brantley Starr in General Paxton's
office. These materials will be posted in the briefing room to access as well.
RLDF will host a conference call tomorrow, Thursday, May 19th at 4:30pm EST to discuss options for AG offices surrounding
this issue. Speaking on the call will be Kyle Duncan from the law firm Duncan Schaerr, who is currently representing the
North Carolina legislature in litigation against the US DOJ over the validity of HB2, and can share ideas/perspectives.
Kyle served as the solicitor general for the State of Louisiana from 2008-2012, and has also served as the general counsel for
Becket Fund for Religious Liberty. He was the lead counsel in Hobby Lobby Stores v. Burwell (2012-14), and has represented
numerous states and state officials in litigation concerning constitutional and federal issues. He successfully defended
Louisiana's marriage laws against federal challenges in Robicheaux v. Caldwell.

Dial in will

passcode).

As always, let me know if you have questions.
Best,
Samantha

 E. SCOTT PRUITT
ATI'Ofu�EY GENERAL OF
OKLAHOMA

KEN PAXTON

PATRICK MORRISEY

ATTORNEY GENERAL OF TEXAS

ATIORNEY GENERAL OF
WEST VIRGINIA

May 17,2016

Catherine E. Lhamon
Assistant Secretary for Civil Rights
U.S. Department of Education
400 Matyland Avenue, SW
Washington, D.C. 20202
Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Office of the Assistant Attorney General, JV!ain
Washington, D.C. 20530-0001
Re: Dear Colleague Letter on Transgender Students

Dear Assistant Secretaty Lhamon and Assistant Attorney General Gupta,
On May 13, 2016, you sent a "Dear Colleague Letter on Transgender Students" to recipients of
federal funding subject to Title IX's requirements. We have reviewed the letter. As chief law officers
of our respective states, it is imperative that we be able to advise our state agencies with a proper
understanding of the effect you intend this letter to have. We thus write to you seeking clarification
on several points.

h/"1, you describe the letter as "significant guidance." \Ve understand this designation to mean that
you reasonably anticipate that your letter will:
(i) Lead to an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State, local, or tribal

 governments or commun1t1es; or

(ii)

Create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency; or (iii) Materially alter
the budgetaty impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (iv) Raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or the principles set forth in

Executive Order 12866,as further amended. 1

That definition of "significant guidance," taken together with your statement that the purpose of the
letter is to "inform recipients about how the Departments evaluate whether covered entities are
complying with their legal obligations," leads us and others to understand that your Departments

will consider any entity not adhering to tlus "significant guidance" as out of compliance with Title
IX, and thus subject to loss of federal funding. In order to clarify this understanding, please answer
the following questions: In your view, must an entity receiving federal funding follow this
"significant guidance" in order to be in compliance with Title IX and/ or entitled to
continued receipt of federal funding? Do circumstances exist in which you would consider a
school still in compliance \vith Title IX despite non compliance with these guidelines? If so,
please describe those circumstances and whether you would take steps to recoup or end
federal funding.

Second,

in the "Final Bulletin for Agency Good Guidance Practices," the Office of Management and

Budget stated that "given their legally nonbinding nature, significant guidance documents should not
include tnandatory language such as "shall," "must," "required" or "requirement[.)"2 By our count,
your letter uses the word "must" 15 times, and the words "required" and "requirement" 10 times.
Because of the mandatoty language used in your letter, it is our understanding that you intend the
letter to bind recipients of federal funding to compliance. In order to clarity this understanding,
please

answer

the following

question:

Must

recipients

of

federal

funding

satisfY the

requirements described in the letter, including the requirement that recipients of federal
funding "treat a student's gender identity as the student's sex for purposes of Title IX and
its implementing regulations"?

Third,

you state that your letter "does not add requirements to applicable law." However, we are

aware of no provision of Title IX, nor any decision of any court that would be binding in our states,'
that mandates that schools "treat a student's gender identity as the student's sex for purposes of
Title IX and its implementing regulations." In other words, if your letter imposes on its recipients
the obligation to "treat a student's gender identity as the student's sex for purposes of Title IX and

its implementing regulations," then we are at a loss as to how your letter does

not

in £oct "add

requirements to applicable law." In order to clarity any confusion, please answer the following
question: What existing statute, regulation, or binding court decision mandates that schools
receiving federal funding must "treat a student's gender identity as the student's sex for
purposes of Title IX and its implementing regulations"?

1 Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432

Oan. 25, 2007),

www

.whitehouse.gov/sites/default/flies/omb/ fedreg/2007 /012507_good__guidance.pdf.

2Id
3 The recent decision by two judges on the U.S. Court of Appeals for tl1c Fourth Circuit in G. G. v. G!ot!<vsler
County Sdtool Board did not address the legality of a federal edict as sweeping as the letter. Moreover, that
decision is still subject to challenge; indeed, nine States ftled a brief last week supporting further review by all
fifteen judges on that court.

2

 J:<omth, your letter defines"gender identity" as"an individual's internal sense

ofgender' (emphasis
added). Your letter also explains that "[t]he Departments interpret Tide IX to rec1uire that when a
student or the student's parent or guardian, as appropriate, notifies the school administration that

the student will assert a gender identity that differs from previous representations or records, the
school will begin treating the student consistent with the student's gender identity." \Ve understand
this to mean that in your view, schools are bound by each student's subjective statement of their
"gender identity" with respect to defining that student's "sex." And once a student notifies the

school that their "internal sense of gender" has changed, the school must immediately change the
way it administers its programs with respect to that student. As your letter indicates, this would
require the school to immediately require all staff to refer to the student as"he" instead of"she" (or
vice versa), and to allow the student to use the bathroom and locker room for the sex opposite of
that which they previously"identified," and even to let the student play sports for a team of the sex
opposite of that which they previously"identified" (unless, apparcndy, there is"sound, current, and
research-based medical knowledge about the impact of the students' participation on the
competitive fairness or physical safety of the sport."). In order to clarify any confusion, please
answer the follmving question: Is it now a requirement of Title IX that schools administer their
programs according to each student's subjective "internal sense of gender," and that Title
IX bars schools from requiring any sort of objective verification of a student's sex?

Fifth,

most schools understandably require that boys use the boy's restroom/locker room and that

girls use the girl's restroom/locker room. Your letter states that once a student's "internal sense of
gender" changes, that student must be allowed to use the bathroom of their choosing. It would be
an odd result if this requirement meant that a transgender student could use

either the

boy's or the

girl's restroom/locker room, whereas other students would remain bound to usc one or the other.
Indeed, it would conflict \vith your statement that "a school must not treat a transgcnder student
differendy from the way it treats other students of the same gender identity," since non­
transgendered students would have less access to fewer restrooms/locker rooms than transgendered

students. \Ve assume, therefore, that a school could "qmiv the student to use only the bathroom for

the gender with which the student at that moment in time identify. In order to clarify any confusion,

please answer the following question: May a school require that a student use only the

bathroom/locker room for the gender \vith which that student identifies?

\Ve seek responses to these important clarifying questions by no later than close of business on May
24, 2016.
Sincerely,

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
313 N.E. 21" Street

Oklahoma City, Oklahoma 731OS

Phone: 405/521-3921
Fax:405/522-0669

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