. . . has been the fantasy of tens of millions of American schoolboys since the beginning of public education. It’s about to become commonplace.
The Biden Department of Education issued a Notice of Proposed Rulemaking on July 12, which Rule would compel schools that receive federal funding (i.e., almost every school in the land) to assign anatomical and chromosomal boys who “identify” as girls to the bathrooms, locker rooms, and showers reserved for girls.
The Obama administration tried the same thing in 2016 by issuing a “guidance letter” that was quickly withdrawn. The Biden administration’s proposed regulation, however, is poised to be enacted after the Notice and Comment period closes on September 12.
The proposed regulation is inconsistent with Title IX and its regulations, which unequivocally permit schools to have separate bathrooms, showers, etc., by sex. Since the relevant statute permits schools to have separate bathrooms, etc., based on sex, a regulation cannot override it — although that fact likely won’t deter the Biden Education Department from putting a school through administrative hell and withdrawing funding for failing to comply with the regulation.
If you wish to comment on the proposed rule, go here. Cynics would be correct in concluding that comments in opposition, no matter how plentiful and logical, will likely have little effect on the administration’s determination to enact the regulation. As someone who has litigated other federal regulations, however, I’ve found that such comments can be enormously helpful in challenging a rule in court.