Texas Lt. Gov. Dan Patrick speaks during a news briefing at the Texas Republican Convention Friday in Dallas. (AP Photo/LM Otero)
WASHINGTON – White House spokesman Josh Earnest on Friday insisted that the Department of Education’s message to schools on transgender access to restrooms and locker rooms simply equates to “guidance.” But a close look shows the department threatens fiscal punishment for non-compliance.
“In this instance this is not an enforceable action,” Earnest told reporters in a news briefing. “This does not add any additional requirements to any school district or state under the applicable law.”
“This is a response to extensive requests for guidance,” President Barack Obama’s spokesman added.
In a letter from the Education Department’s civil rights office and the Justice Department’s civil rights division, top officials indicate otherwise, citing Title IX, a 1972 federal statute that bars discrimination in access to education programs and activities on the basis of sex.
“As a condition of receiving federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations,” the letter says. “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
Earnest’s careful wording of his answers indicates that the administration has no plans to ask Congress to vote on whether to update Title IX to add word “gender” alongside the word “sex” in the statute.
Friday’s letter asserts that “a person’s gender identity may be different from or the same as the person’s sex assigned at birth,” explaining that refers to the individual’s birth certificate. It further claims that the interpretation “is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.”
Critics beg to differ.
In Texas, Republican Gov. Greg Abbott vowed to “fight” the order and added in a social media post that “Obama can’t rewrite the Civil Rights Act.”
I announced today that Texas is fighting this. Obama can’t rewrite the Civil Rights Act. He’s not a King. #tcothttps://t.co/vDgfQPZXjR
At the White House, Earnest took aim at Texas Lt. Gov. Dan Patrick, a Republican former state senator who previously worked in radio and television, including hosting a conservative talk show. In widely reported statements, Patrick said the state would refuse to comply with the letter’s stipulations and labeled it as a form of “blackmail” that wouldn’t improve education in the Lone Star state, which has about 5 million students in public schools. Texas annually collects more than $5 billion in federal education funding.
“Well I think this does underscore the risk of electing a right-wing radio host to a statewide elected office,” Earnest quipped when asked about Patrick’s comments. The spokesman later described those voicing opposition to the letter’s terms as trying to “score some cheap political points.”
“I recognize that they’ve got some sharp political arguments that were honed over years of morning drive-time radio in Houston but school administrators don’t have the benefit of just talking,” Earnest said. He noted that the letter was a response to inquiries from schools “across the country” seeking “guidance.”
But several governors ripped the administration for intruding into local affairs where it’s not wanted.
“This is the most outrageous example yet of the Obama administration forcing its liberal agenda on states that roundly reject it,” said Mississippi Gov. Phil Bryant, a Republican, according to the Associated Press. The news service said Arkansas Gov. Asa Hutchinson, another Republican, said schools in his state should disregard the directive, calling it “social engineering.”
The letter’s assertions aren’t legally binding, AP reported, since the question of whether federal civil rights law protects transgender people hasn’t been sorted out by the courts or Congress.
At the White House, Earnest said that “there are some school districts across the country that have sought to enhance the privacy of their students by making relatively minor changes to shared-use facilities.
“In some cases that means just putting up curtains so people have more privacy when they’re changing their clothes or taking showers,” he said.
Earnest later responded to questions about any role Obama took in producing the letter.
“This is a policy decision that was made by the Department of Education, and yes, the White House was involved in coordinating that policy decision,” Earnest said. “We’ve been quite clear about the need to keep enforcement actions separate from any sort of political interference,” he added, asserting that the letter wasn’t an enforcement step.
Earlier this week, North Carolina and the Obama administration exchanged lawsuits over Republican Gov. Pat McCrory’s refusal to rescind a law passed by the state Legislature in March that requires citizens to use bathrooms and changing rooms that correspond with their anatomy rather than their choice of gender identity.
U.S. Attorney General Loretta Lynch told reporters Monday that the Tar Heel State risks losing millions of federal aid dollars if it doesn’t comply with the administration’s demands.
Texas Lt. Gov. Dan Patrick speaks during a news briefing at the Texas Republican Convention Friday in Dallas. (AP Photo/LM Otero) 
