This morning the Department of Justice and Department of Education released a joint statement of extraordinary breadth and scope. Under the guise of offering “guidance,” the Obama administration put every single public and private educational institution receiving federal funds on notice that it intends to interpret and enforce Title IX — a statute, written in 1972, that by its explicit terms only prohibits sex discrimination — as also prohibiting discrimination on the basis of “gender identity, including discrimination based on a student’s transgender status.” If a boy claims he is a girl, then, according to the Obama administration, he is a girl and must be treated as such by the educational institution.
Given recent events in North Carolina, media have emphasized the letter’s treatment of bathroom access, but it casts a far broader net. At a stroke, the administration has attempted to impose its radical vision of human sexuality on every public-school student and employee in the country. The consequences are profound, and conservatives must vigorously resist.
Regarding athletic competitions, the letter prohibits schools from relying on “overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex” when determining eligibility for athletic competitions. While the letter does allow schools to consider “competitive fairness” and “physical safety” in participation rules, the ambiguity creates the potential for endless conflict and contention. Boys will be competing in girls’ sports, and when parents or athletes complain, their “discomfort” cannot be considered as grounds for denying eligibility.
The threats to student safety are obvious. If schools comply with administration demands, unscrupulous individuals will have unfettered access to girls in their most private and vulnerable moments. But the problems with the administration’s action go well beyond safety, representing a direct attack on the rule of law, the separation of powers, and federalism. The administration is overriding local control of local schools to advance the most radical ideas of the LGBT Left.
Congress must demonstrate that it will not tolerate illegal expansions of federal law.
The state of North Carolina has already filed a lawsuit challenging the administration’s expansive interpretation of Title IX, the governor of Texas has said his state will resist (with the lieutenant governor suggesting that it may even forgo billions of dollars in federal education funds so as not to be subject to the mandate), and a coalition of families have filed their own lawsuit in Illinois. This legal response is necessary and important, but it will take years to resolve. In the meantime, it is vital that conservative elected officials offer a political response, beginning with Congress exercising its oversight authority over both the Department of Justice and the Department of Education. Congress must demonstrate that it will not tolerate illegal expansions of federal law, and that it will not appropriate federal funds for enforcing unlawful edicts.
The administration justifies its decree by couching it in the language of civil rights — even comparing the desire to limit bathrooms to members of the same sex to the evils of Jim Crow. In reality, the administration is violating the civil rights of female students by rendering them more vulnerable to exploitation and harassment, and it’s violating the civil rights of parents and local voters by unlawfully depriving them of their traditional role in the governance of the schools in their community.
Dealing with transgender children requires tact, good judgment, and a healthy dose of discretion. School officials should be empowered to reach individualized solutions for individual issues — while protecting all of the students in their care. But the Obama administration has disregarded tact to make a statement, to declare illegitimate and bigoted any traditional distinctions between the sexes. That is not its call to make.