The Department of Education will instruct every public school in America to provide “suitable” bathroom and locker room facilities to match transgender students “chosen gender identity.”
The Washington Post has details on how the Obama Administration is justifying the new directive:
The directive comes from two top administration officials: Catherine E. Lhamon, the assistant secretary of education for civil rights, and Vanita Gupta, head of the Justice Department’s Civil Rights Division. It will put state and local officials and higher-education institutions on notice that they risk losing federal education aid if they limit students to areas or teams based on their gender assigned at birth.
The action comes just days after the Justice Department and the state of North Carolina filed dueling lawsuits over a new law requiring individuals in that state to use bathrooms based on their birth gender.
Citing Title IX, which prohibits sexual discrimination at educational institutions that receive federal funding, the two officials warn that the obligation “to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.
“As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students,” reads the letter, which was obtained by The Washington Post.
News of the policy hit late Thursday night but some prominent Republicans were up late enough to respond. Sen. Ben Sasse (R-NB) asked some appropriate, yet, sadly, rhetorical questions via Twitter:
Is there any issue the Obama Administration believes can be left to state and local government?
— Ben Sasse (@BenSasse) May 13, 2016
Has our Constitutional Law Professor-President ever read the 9th and 10th Amendments?
— Ben Sasse (@BenSasse) May 13, 2016
And Gov. Greg Abbott (R-TX) announced that he will sue the Dept. of Education over the mandate:
— Greg Abbott (@GregAbbott_TX) May 13, 2016
Title IX of federal education law prohibits sexual discrimination for any school (primary, secondary or college) that receives federal funding. But does Title IX apply not just to a persons gender, but also to their perceived gender identity? According to a recent decision by the 4th Circuit Court of Appeals, yes.
Ed Whelan at National Review broke down that decision last month when it came down.
In a divided ruling, a Fourth Circuit panel ruled today, in G.G. v. Gloucester County School Board, that a Virginia school discriminated “on the basis of sex” in violation of Title IX when it barred “G.G.,” a “transgender boy”—that is, a girl who thinks she’s a boy—from using the boys’ restroom. (The school instead allowed her to use either the girls’ restrooms or one of the school’s single-stall restrooms, which the school created to accommodate transgender students but which were available to all students.) The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX “requires schools to provide transgender students access to restrooms congruent with their gender identity.” It ordered the district court to reconsider whether G.G. is entitled to preliminary injunctive relief against the school’s rule.
It appears Obama’s Education Department is using this decision as a rationale to mandate every school in America to accommodate any child whose gender identity might not sync with their actual gender.
Whether the administration chooses to mandate a bathroom/locker room free-for-all by utilizing Title IX, which was written in 1972, or by utilizing the 1964 Civil Rights Act (as they did earlier this week in their lawsuit against the state of North Carolina) they’ll be hard pressed to find any contemporaneous notes by congressmen and senators who crafted those historic laws which reveal that they were trying to protect against not just sexual discrimination, but transgender discrimination as well.
Regardless of how this gets worked out in the courts, every parent in America will wake up this morning having to deal with an issue they probably never thought they’d have to face several years ago. Parents now have to decide how they will deal with the reality that their child will not enjoy a basic level of privacy when they use a restroom or locker room when they go to school. Will this bring about a rise in private school attendance? Will it inspire more parents to home school their children? Will states flirt with the idea of refusing federal education funds?
Either way, if anyone wondered what President Obama meant when he promised to “fundamentally transform the United States of America,” now they know.