WILL Press Release | WILL Reacts to U.S. Department of Education Dictate on Transgender Access to Public School Bathrooms

Federal mandate offends constitutional constraints on Executive Branch, Federal Government

May 13, 2016 – Milwaukee, WI – In response to the United States Department of Education’s mandate that public schools provide bathroom access to transgender students based on how they gender identify, the Wisconsin Institute for Law & Liberty condemns the policy for failing to respect the constitutional constraints on the Executive Branch to make public policy and the rights of the various states.

Rick Esenberg, President and General Counsel at WILL, commented, “We can disagree on the merits of an abrupt change in longstanding practice. But we should not disagree on the important rule of law question presented here. This is a question for the legislature or for the courts interpreting existing law and constitutional provisions. It is not a question to be resolved by a bureaucratic command backed up by the blackmail of withholding federal funding.”

Mario Loyola, WILL Senior Fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law & Liberty remarked, “This is executive federalism. The key insight here is this: The President has discovered that when Congress will not implement his agenda, he can advance it through state governments by a number of coercive means. This is a rule that no legislature in the land, federal or state, would ever enact, foisted on the land by the president through states he’s not supposed to be able to commandeer. This is not like federal courts protecting someone’s civil rights from state abuses, which is necessary and laudable. This is just an arbitrary exercise of unconstitutional presidential power, in the service of the latest progressive fashion trend.”


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