The Obama administration’s bathroom directive, ordering local school districts to allow transgender students to use the restrooms of their choice, has caught congressional Republicans off guard.
The response has been a mix of pessimism, frustration, and a call for the states to defy the directive at the local level.
Sen. James Lankford, R-Okla., ventured into the fray Tuesday with a strongly worded letter to Department of Education Secretary John King Jr. Lankford wrote that the department’s directive “conflates an individual’s gender identity with the widely accepted and longstanding understanding of sex without support in Title IX.”
The new guidelines, released Friday by the U.S. Departments of Justice and Education, instruct local schools to extend Title IX protections, which prohibit sex-based discrimination, to transgender students.
The Oklahoma senator slammed King for advancing “substantive and binding regulatory policies” that didn’t go through the regular rule-making process or through an act of Congress.
Sen. Mike Lee, R-Utah, decried the directive and told The Daily Signal that “Obama has again abused his executive authority to disrupt the lives of millions of Americans.”
The bathroom directive, Lee said, underscores the need for reforms that “would defang the Department of Education.” But an aide to the senator noted that there were “no immediate plans” to advance reform.
Republican leadership has not tangled with the administration over the issue directly. Instead, House Speaker Paul Ryan, R-Wis., has maintained that states, not the federal government, should take point in crafting policies that best address the issue at the local level.
A Ryan aide told The Daily Signal that the speaker “believes this is a state and local issue and the federal government should respect that.” When asked if Ryan planned to offer a rebuttal, the aide predicted the speaker would let any legislative fix work its way through the committee process.
Ryan’s counterpart in the Senate, Majority Leader Mitch McConnell, R-Ky., has remained quiet on the issue and didn’t respond to The Daily Signal’s request for comment.
1. Push States to Ignore Obama’s Directive
Rep. Mark Meadows, R-N.C., advised states and local school districts “to just disregard the president’s directive.”
“It’s not a rule,” the Freedom Caucus board member told The Daily Signal. The administration “hasn’t gone through the rule-making process because it’d have to come through our [congressional] oversight. You would actually have to change a rule for it to have the effect of law.”
Many conservatives in both the House and the Senate see the bathroom battle as a conflict best suited to the terrain at the state level. Asked what recourse public schools have now, Rep. Mick Mulvaney, R-S.C., said he couldn’t “imagine what it is.”
“I would love to see some local school districts, mine included, just say ‘No, we’re not going to do it,’” Mulvaney, who is also a Freedom Caucus board member, said. “If that means having to figure out how to do without federal funds, then God bless them. You have to fight at some point and Congress is not showing the ability to fight back during this administration.”
While President Barack Obama’s directive does not carry the force of law, it’s been widely received as a veiled threat to local districts: comply or lose federal funds.
2. Clarify What Title IX Means
Heritage Foundation scholar Ryan Anderson explained that Congress could clarify federal law to stop what he considers “the Obama administration’s unlawful rewriting of Title IX.”
That would require the legislature, he said, to “reaffirm that ‘sex’ does not mean ‘gender-identity’ in statutes passed decades ago.”
3. A Voucher System
But there is some discussion in conservative circles about a potential fix—albeit a long-term one.
Rep. Cynthia Lummis, R-Wyo., imagines a voucher system specifically for families who have concerns with social issues.
“For any school that accepts federal funds, and the strings that come attached,” Lummis told The Daily Signal, “the families who send their children to those public schools should be able to receive a voucher to go to the school of their choice if any matter of social mores is inconsistent with their realm.”
The Wyoming lawmaker aims, she said, to introduce the plan as a standalone measure and gauge how much bipartisan support it attracts this year. As a standalone bill, that plan faces an uphill trek to passage in the current political climate.
Mulvaney interprets Republican leadership’s silence as a reluctance to challenge Obama on the issue through the legislative process. That would require tying a bill to a must-pass piece of legislation, Mulvaney said, and risking a government shutdown.
“We all know that there’s too many Republicans who just abhor the thought of any discussion of a shutdown during an election year,” he said, “so we won’t fight.”