Senator James Lankford (R-OK) has challenged the Department of Education’s legal justification for its May 13 guidance directive to local school districts regarding the use of public school bathrooms. Lankford contends the directive is part of a long pattern of attempts to create new mandates and requirements without the normal, transparent rule-making or legislative process.
The Administrative Procedure Act (APA) allows agencies to produce guidance documents to clarify issues in an existing regulation or law. While the majority of guidance directives are used appropriately to provide regulated entities with timely information and necessary clarification, agencies, like the Department of Education, have improperly issued letters and other types of instructions to compel entities to comply with their suggestions and recommendations, rather than pursuing any changes through the regulatory or legislative process.
Through a letter to the Department, Lankford asked them to explain their legal justification for expanding “sex” under Title IX to include “gender identity.” Among other questions, Lankford also asked if schools are prohibited from taking into account the privacy rights of all students in service of adherence to the discrimination policies set forth by the Department’s Office of Civil Rights. Lankford requested a response from the Department by May 31.