Forty years ago, Congress approved the Education Amendments of 1972 by 88 percent in the Senate and 69 percent in the House, sending them to President Richard Nixon for his signature. The heart of that law is Title IX: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Congress has occasionally supplemented and modified the law in the ensuing decades, but in the last few years, something more troubling has begun to occur. It is nothing short of an attempt by the current presidential administration to rewrite this venerable statute without congressional oversight.

This Is Essentially Brand-New

The attempt to remake Title IX began recently. In April 2014, the Department of Education issued “guidance” on enforcing Title IX, the law banning sexual discrimination in education, in the context of sexual violence. The 46-page document includes an interpretation of the statute that includes “gender identity”:

Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.
In January 2015, the U.S. Department of Education’s Office of Civil Rights issued a dear colleague letter interpreting this document as requiring schools to provide all facilities and services based on the self-identified sex of students. This letter informed an unnamed school official (the information is redacted in the available copy):