President Obama so loves Rahm Emanuel’s adage “Never let a serious crisis go to waste” that he has adopted a corollary: “Never miss a chance to create a crisis.” This has certainly been the rule when it comes to education. On Friday, the Obama administration sought to revolutionize how schools and colleges deal with sexual identity. In a new guidance letter, Obama’s Education and Justice Departments assert that for federal civil-rights purposes, a student’s gender identity is now his or her sex. Henceforth, in other words, a student’s sex is whatever the student says it is.
When applying Title IX, the federal law prohibiting sex-based discrimination in education, this means that Washington no longer deems biological sex relevant. A school or college that receives federal funds is now violating civil-rights law if, for instance, it restricts to one biological sex the use of restrooms or locker rooms designated for that sex. While the new guidance does not officially carry the force of law, experience teaches that it will be treated as such by plenty of nervous educators. Meanwhile, the enthusiastic media coverage made clear that those who express qualms will be depicted as bigots and bullies. As the headline in Politico’s Morning Education put it, “White House Stands Up for Transgendered Students.”
EDITORIAL: The Obama Administration Rewrites Title IX
One can empathize with transgender students and their desire for privacy, dignity, and security and still be struck by just how radical the guidance actually is. It states that:
‐Transgender students have the right to access bathrooms and locker rooms, live in single-sex housing, and participate on athletic teams that correspond with their chosen gender identity.
‐Schools are allowed to offer private changing areas when students request them, but transgendered students can’t be required to use them. In other words, even if private changing rooms or bathrooms are provided, students have a right to use whatever bathrooms and locker rooms they prefer.
‐Colleges must allow transgender students to live in housing consistent with their gender identity and may not require them to live in single-occupancy rooms.
‐When students tell a school they are transgendered, school personnel must treat them in accord with their preferred gender identity. This is true regardless of what biological sex a student’s records indicate. Schools are prohibited from requiring that transgender students have a medical diagnosis, undergo any medical treatment, or produce a birth certificate.
#share#The presumption is that conventional, biologically informed male–female distinctions are such a blatant violation of civil rights that sweeping change is the only viable course. Suggestions that the needs and sensitivities of other students also deserve consideration are dismissed as an apologia for oppression. Indeed, the guidance bluntly rejects notions of mutual accommodation or competing privacy rights, declaring, “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.”
The Obama administration went out of its way to seek a culture clash.
The administration went out of its way to seek a culture clash. Indeed, until last week, LBGT advocates argued that the problem with state laws governing bathroom or locker-room usage was that they got in the way of sensible case-by-case solutions for the relatively tiny population of transgender students. As for those transgender students who have said they simply want to be allowed to live their lives peacefully and privately, one wonders how they feel about becoming pawns in a contentious crusade.
Once again, it has been left to Senate education-committee chair Lamar Alexander to remind Obama’s legacy-bent appointees, “This is the kind of issue that parents, schools boards, communities, students, and teachers should be allowed to work out in a practical way with a maximum amount of respect for the individual rights of all students.”
This latest move mirrors Obama’s earlier approach to campus sexual assault, where his administration took a concern ripe for bipartisanship and instead used junk statistics to justify ludicrous new directives that trashed due process, restricted free speech, and have now provoked a bitter backlash. The administration moved similarly on school discipline, where serious concerns about whether black children are disciplined too harshly were used as an excuse for Washington to mandate race-based disciplinary quotas.
#related#The new guidance poses some head-scratching implications. For instance, when male golfers, swimmers, or basketball players find they are unlikely to receive college athletic scholarships, it will be intriguing to see if some attempt to compete as women in the hope that they might earn scholarships that can save tens of thousands in tuition. Things could get complicated, since the guidance permits sex-segregated sports to adopt “tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety” but, at the same time, the guidance letter prohibits schools from requiring athletes to document their physical sex or prove that they are “transitioning.” The guidance also raises questions about just what schools and colleges will be obliged to do in terms of facilities or athletic opportunities for students whose gender identity is something other than male or female.
Now, despite administration efforts to suggest otherwise, this new guidance does not carry the force of federal law. It is just the opinion of Obama’s excitable lawyers. The guidance should not be treated as settled law, in Washington or the states. Congress can and should reject the administration’s divisive absolutism in favor of a measured approach more in keeping with American pragmatism, pluralism, and common sense.