Bench Memos

Law & the Courts

Obama Administration ‘Guidance’ on Bathrooms/Showers—Part 2

The Obama administration’s new guidance letter, co-signed by Catherine Lhamon, assistant secretary of the Department of Education, and Vanita Gupta, principal deputy DOJ’s Civil Rights Division, adds nothing of legal substance to the absurd misreading of Title IX that the Obama administration had already taken in previous letters.

As I have explained, and as pages 3-4 of the letter spell out, that misreading would have the immediate impact of requiring schools (and colleges) to allow boys (and men) who say they identify as female to use the girls’ (and women’s) restrooms and showers, to compete for spots on girls’ (and women’s) sports teams, and to be housed with female roommates. (Vice versa, as well, of course.)

That misreading, consistently applied, would also have some extraordinary long-term consequences, including the complete elimination of any system of separate boys’ and girls’ restrooms and showers (yes, including the transgender-modified system that the Obama administration is trying to impose) and the complete elimination of girls’ sports teams.

[Addendum (2:45 p.m.):] As I outlined here, the Obama administration’s misreading of Title IX would also require schools to compel a school to bar a boy from the boys’ restrooms and showers if he identifies as female, even if he still looks entirely male and even if he would prefer to use the boys’ facilities. It would require a girls’ sports team to bar a girl who identifies as male. And it would require a women’s college like Mount Holyoke to expel a woman who identified as male. (Title IX doesn’t apply to admissions at private colleges, but it generally applies to the rest of their operations.)​

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