FOR IMMEDIATE RELEASE
NEWS ADVISORY
May 27, 2016
For More Information, contact:
Luther Strange
Mike Lewis (334) 353-2199
Alabama Attorney General
Joy Patterson (334) 242-7491
Page 1 of 1
ATTORNEY GENERAL STRANGE ISSUES LETTER TO STATE BOARD OF
EDUCATION REGARDING FEDERAL TRANSGENDER RESTROOM DIRECTIVE
(MONTGOMERY) – In response to numerous inquiries from educators about the recent federal
“significant guidance letter” on school restroom access for transgender students, Attorney
General Luther Strange has written the Alabama State Board of Education with his view of the
legality of the federal directive.
Attorney General Strange told the State Board of Education the federal guidance letter is an
attempt to rewrite federal law and should therefore be ignored until the issue is settled in federal
court.
“Although the (federal guidance) letter states that it ‘does not add requirements to applicable
law,’ it clearly purports to change the law by redefining the word ‘sex’ in Title IX of the
Education Amendments of 1972 to mean ‘gender identity,'” Attorney General Strange wrote.
“ÖTitle IX is about discrimination ‘on the basis of sex,’ not gender identity.”
“On May 25, I filed suit on behalf of Alabama, along with officials from ten other States, to
prevent the Department of Justice and Department of Education from enforcing the guidance
letter. This lawsuit will determine whether the Department of Justice and Department of
Education have the authority to implement the policy announced in the guidanceÖ Until the
lawsuit is resolved, I would encourage educators to simply ignore the guidance letter.”
–30–
A copy of AG Strange’s letter is attached
Link to AG Strange’s lawsuit release
501 Washington Avenue * Montgomery, AL 36104 * (334) 242-7300
www.ago.alabama.gov
STATE OF ALABAMA
OFFICE OF THE ATTO RNEY GENERAL
501 WASHINGTON AVENUE
LUTHER STRANGE
MONTGOMERY, AL 36130
ATTORNEY GENERAL
(334) 242-7300
WWW.AGO.ALABAMA.GOV
May 26, 2016
Via Email
Board Members
Alabama State Board of Education
50 North Ripley Street
Montgomery, Alabama 36104
Re: Dear Colleague Letter on Transgender Students
Dear Members of the Board of Education:
My Office has received numerous inquiries from educators and others about the
“significant guidance letter” issued by the United States Department of Education and
Department of Justice on May 13, 2016. Although the letter states that it “does not
add requirements to applicable law,” it clearly purports to change the law by
redefining the word “sex” in Title IX of the Education Amendments of 1972 to mean
“gender identity.”
It is my understanding that principals and teachers in Alabama have
considerable discretion in how to accommodate transgendered students. The question
of how to accommodate a transgendered student is presently resolved on a case-by-
case basis in consultation with the student’s parents, teachers, and principals. But it
appears that the most frequent accommodation is to encourage the student to use a
single-occupancy bathroom. Unfortunately, that commonsense practice would be
inconsistent with the “significant guidance letter,” which states that “a school may not
require transgender students . . . to use individual-user facilities.”
In my opinion, the guidance letter is based on a legally erroneous interpretation
of Title IX. Title IX forbids disparate treatment “on the basis of sex.” 20 U.S.C. ß
1681(a). But Title IX provides that “nothing contained herein shall be construed to
prohibit any education institution . . . from maintaining separate living facilities for
the different sexes.” 20 U.S.C. ß 1686. Similarly, the 1975 regulation that implements
Title IX expressly authorizes “provid[ing] separate toilet, locker room, and shower
facilities on the basis of sex.” 33 C.F.R. ß 106.33.
In other words, Title IX is about discrimination “on the basis of sex,” not gender
identity. Unlike subjective gender identity, sex is an objective biological reality. The
American Psychological Association defines “sex” as “a person’s biological status”
based on indicators such as “sex chromosomes, gonads, internal reproductive organs, Board Members
May 26, 2016
Page Two
and external genitalia.” Gender, on the other hand, “connotes cultural or attitudinal
characteristics distinctive to the sexes, as opposed to their physical characteristics.”
Hopkins v. Baltimore Gas & Elec Co., 77 F.3d 745, 749 n.1 (4th Cir. 1996).
To redefine “sex” as “gender identity,” the guidance letter erroneously relies
on judicial decisions that are distinguishable and unpersuasive. Judicial decisions in
which transgender plaintiffs have been allowed to pursue discrimination claims have
involved penalizing the transgendered person for failing to look, act, or dress the way
“real” men or women are culturally expected to. Most of these cases did not even
mention bathroom usage, and none of them turned on bathroom-related claims. The
guidance letter ignores, however, the numerous courts that have held that schools may
provide separate bathrooms on the basis of biological sex differences. E.g., Jeldness
v. Pearce, 30 F.3d 1220, 1228 (9th Cir. 1994); R.M.A. v. Blue Springs R-IV Sch. Dist.,
477 S.W.3d 185, 187 (Mo. Ct. App. 2015); Johnston v. Univ. of Pittsburgh of Com.
Sys. of Higher Educ., 97 F. Supp. 3d 657, 670 (W.D. Pa. 2015); Doe v. Clark Cty. Sch.
Dist., No. 206-CV-1074-JCM-RJJ, 2008 WL 4372872 at * 4 (D. Nev. Sept. 17, 2008).
Because the guidance letter is based on an erroneous view of Title IX, I believe the
threat that schools will lose federal funding for failing to comply with the guidance is
ultimately an empty one.
On May 25, I filed suit on behalf of Alabama, along with officials from ten
other States, to prevent the Department of Justice and Department of Education from
enforcing the guidance letter. This lawsuit will determine whether the Department of
Justice and Department of Education have the authority to implement the policy
announced in the guidance. I have attached a copy of our complaint to this letter. Until
the lawsuit is resolved, I would encourage educators to simply ignore the guidance
letter.
Sincerely,
Luther Strange
Attorney General
LS:klg
Enclosure
cc: Dr. Philip Cleveland, Interim State Superintendent
Juliana T. Dean, Esq., General Counsel
