Yesterday the Trump administration preserved federalism, respected the principle of local control over local schools, and corrected one of the Obama administration’s many lawless and radical executive actions. With a simple, two-page letter, the Departments of Education and Justice withdrew and rescinded two Obama-administration letters that purported to unilaterally redefine Title IX of the Education Amendments of 1972. The Obama administration had expanded Title IX’s explicit ban on sex discrimination in federally funded educational institutions to encompass “gender identity” discrimination and then imposed intrusive “guidance” on every federally funded school in the nation, on matters ranging from pronoun usage to eligibility for sports teams and access to showers, bathrooms, and sleeping quarters on overnight trips.
Put plainly, the Obama administration used a letter to rewrite a statute and then applied that letter to every public school in the United States, from kindergarten through college. This is not how one makes law in our constitutional republic. New laws require new statutes, and presidents do not have the power to rewrite old laws at will. At the very least, the Administrative Procedure Act requires that new and substantive agency rules go through a notice-and-comment procedure that gives the public a voice in the regulatory rulemaking process. The Obama administration skipped each of these steps.
Make no mistake, the actions of the Obama administration were both substantive and intrusive. While media often characterize the letter as merely providing “bathroom” guidance, it has affected broad areas of school life and conduct. In requiring schools to create a “supportive” environment for transgender students, it directed, for example, that girls could be forced to shower or change clothes next to anatomically intact males, sleep in the same room as males on overnight trips, and compete against males in sporting events.
There was no medical diagnosis or treatment requirement before schools were obligated to treat boys as girls or girls as boys. Instead, the legal requirements locked in the instant the student or the student’s parents notified the school that the student’s “gender identity” differed from his or her biological sex.
The implications for free speech and school curricula were profound, raising a host of questions. If a school tolerated other students “misgendering” a trans student through “improper” use of names or pronouns, was it creating a hostile learning environment? Would the school use the Obama administration’s guidance to attempt to override students’ free-speech rights to dissent from the decree? Did biology textbooks and other educational materials have to change to reflect the new definition of “gender” as an identity distinct from a person’s biological sex?
Critically, this federal guidance specifically instructed schools to ignore parental input or parental concerns if parents dissented from the new orthodoxy. The letter was clear: Schools were to provide transgender children “equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” This meant that parents who had legitimate concerns about safety, fairness, or even biological reality were left without a voice, even as the policy directly impacted their children’s educational experience.
In our republic, letters are no substitute for lawmaking.
Repealing the Obama administration’s letter leaves the difficult question of how to deal with gender-nonconforming students exactly where it belongs, with the states and local communities that traditionally control public education. Contrary to the claims of LGBT activists, preserving federalism does not leave transgender students to the mercy of bullies or bigots. As the Trump administration’s letter notes, “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Additionally, it reiterated its legal obligation to “hear all claims of discrimination.”
The Trump administration’s proper decision to rescind the Obama administration’s letter should send a clear signal to social-justice activists — what one president gives, the next president can take away. When it comes to serious matters like expanding federal nondiscrimination law, new laws should come only through constitutional process. If you want to change the law, persuade Congress to pass a statute. In our republic, letters are no substitute for lawmaking.
If states or local school boards want to recreate the Obama administration’s standards and apply them to their own schools, they are free to do so. If other states or school boards want to leave the difficult decisions to principals and teachers, who know the individuals and parents involved, they are free to do so as well. When it comes to the most delicate matters of student privacy and identity, one size most assuredly does not fit all.