Politics & Policy

The Obama Administration Rewrites Title IX

(Carlos Barria/Reuters)

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.

According to the Obama administration, schools will now be required to police speech regarding gender identity. School officials are required not only to refer to students by their chosen gender but also, through expansion of nondiscrimination policies, to maintain an “environment” that the administration deems sufficiently “safe,” “nondiscriminatory,” or even “supportive.” This will necessarily require regulating student speech as well. Additionally, the letter not only grants opposite-sex access to locker rooms (including showers), it requires schools with single-sex dorms to allow men access to women’s dorms and to make other “overnight accommodations.” So when schools are arranging accommodations for overnight school trips, boys will be entitled to sleep in the same hotel room as girls. When, inevitably, girls are involuntarily exposed to the sight of male genitalia, it will be interpreted not as an act of indecent exposure or sexual harassment but rather as a byproduct of the exercise of civil rights.

RELATED: The Transgender Straw Broke the Camel’s Back: It’s Time to Declare Independence from Public Schools

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.

When students or their parents assert a changed gender identity, the school is required to take them at their word. It can’t require a medical diagnosis, evidence of treatment, or even any identification document. A boy is a girl if he says he is a girl. The school must then grant him full access to girls’ programs and facilities on exactly the same basis as any other female at the school.

#share#The Obama administration misleadingly claims that this letter does not “add requirements to existing law,” instead asserting that the requirements above are already mandated by agency interpretations of existing law. Thus, citizens are free to seek federal enforcement actions against any school that is out of compliance. This is disingenuous. The administration isn’t just interpreting the law, it’s expanding it dramatically. Through a series of memoranda, the Obama administration has unilaterally amended and expanded Title IX, and it is now signaling its willingness to enforce its edict by stripping noncompliant schools of federal funds.

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. 

The Editors comprise the senior editorial staff of the National Review magazine and website.

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