Will public schools really lose federal education funding if they refuse to comply with a new Obama administration directive regarding transgender students?
That's the basic query posed by top lawyers from Texas, Oklahoma and West Virginia in a letter sent Tuesday to the U.S. Justice and Education departments seeking clarification on the directive, which advises the nation's public schools to allow transgender students to use the bathrooms that match their gender identity.
The guidance, issued Friday by those agencies, came days after Lt. Gov. Dan Patrick called for the resignation of the Fort Worth ISD superintendent for implementing similar rules designed to help educators abide by an updated nondiscrimination policy.
Attorney General Ken Paxton has already threatened legal action over the directive, which does not have the force of law but seeks to clarify how federal agencies may interpret relevant statutes and an entity's compliance.
In Tuesday's letter, Paxton and the two other state attorneys general ask whether entities receiving federal funding must “follow this ‘significant guidance’ in order to be in compliance with Title IX” — the federal law governing gender equity in education — “and/or entitled to continued receipt of federal funding?”
“Do circumstances exist in which you would consider a school still in compliance with Title IX despite non-compliance with these guidelines?” the letter asks. “If so, please describe those circumstances and whether you would take steps to recoup or end federal funding.”
Texas receives more than $5 billion per year in federal education funding, which it uses for free-and-reduced lunch and other programs designed to help needy children.
Last week, Patrick said he was willing to forgo that money and urged Texas superintendents to resist pressure from the federal government to follow the directive.
"He says he's going to withhold funding if schools do not follow the policy," Patrick said of Obama. "Well, in Texas, he can keep his 30 pieces of silver. We will not be blackmailed by the president of the United States."
Texas Education Commissioner Mike Morath declined to weigh in on the directive Tuesday during a wide-ranging interview with The Texas Tribune’s Evan Smith, saying "Until we have a clear sense of our options, it’s just not appropriate for me to comment.”
But Gov. Greg Abbott told Fox News last week that the administration's directive violates the constitutional principle of separation of powers, describing it as egregious federal overreach.
The letter from the attorneys general, which requests a reply by May 24, also seeks clarification on whether recipients of federal funding must “treat a student’s gender identity as the student’s sex for purposes of Title IX” and whether it is “now a requirement of Title IX that schools administer their programs according to each student’s subjective ‘internal sense of gender’” — a phrase used in the directive.
It also asks whether Title IX “bars schools from requiring any sort of objective verification of a student’s sex” and if schools may “require that a student use only the bathroom/locker room for the gender with which that student identifies." It notes that non-transgender students only have one option for which bathroom to use, while the directive could technically mean that transgender students get to use whatever bathroom they want at any time.
“The so-called ‘significant guidance’ issued by the Obama Administrations raises more questions than it answers, just as it creates concerns among anyone who believes sex is a biological fact and not a personal preference,” Paxton said in a statement announcing the letter. “As billions of dollars appear to be at stake based upon schools’ compliance with this guidance, the Obama Administration must be extremely clear about what is and isn’t allowed, and explain how their actions do not add requirements to the law, as their letter claims.”