On Friday, a group of 78 representatives signed a letter asking the Department of Education (ED) and the Department of Justice (DOJ) how they would enforce the new interpretation of federal law to grant transgender people access to facilities that do not correspond to their biological sex. PJ Media gained access to the letter and the number of representatives supporting it via an email statement. Denouncing the “suggested guidance” as an overreach on behalf of the federal government, the representatives challenged the authority of these agencies to issue such an order.
In effect, the Obama administration unilaterally altered federal law by redefining “sex” to include gender. As the letter makes clear, “this guidance expands the ED and DOJ’s interpretations of sex discrimination to include not only an individual’s biological sex, but also an individual’s internal sense of gender.”
“The Obama administration’s edict redefining long-standing definitions in Title IX [of the Education Amendments of 1972] is another clear overreach of the federal government,” declared North Carolina Representative Mark Walker, who drafted the letter and led the charge. “The federal government has no business making these decisions, much less, to threaten stripping federal funds from schools for not following their politically motivated orders.”
Walker denounced the rule as an impediment to schools doing their job. “It is the responsibility of our schools and teachers to create a safe and effective learning environment for every student and this action makes that goal unattainable,” he declared.
Walker’s letter requests answers on eight key questions, which can be summarized like this: How will ED and DOJ enforce this rule, what does it look like for school employees to follow this rule, and where do your organizations find the authority to redefine longstanding law in this way?
The letter also asks questions about protections for conscience and whether the organizations have any concern for the privacy and discomfort of non-transgender people. Specifically, it asked “why schools must disregard … the emotional strain imposed on other students during [transgender] use of bathroom, showering, and changing facilities.” That is a very good question.
Next Page: Why these questions are a perfect response to The New York Times attack on transgender skeptics.
In each case, the representatives bluntly ask what the new guidance will mean in practice:
1. Clarify specifically all actions that the ED and DOJ, jointly or separately, will take against or regarding a teacher, school administrator, education, school contractor, or person volunteering at a school who does not comply with this guidance;
2. Detail whether the ED and DOJ will recognize or accommodate rights of conscience and privacy in an individual’s or institution’s non-compliance with this guidance; …
4. Detail all actions that a school, teacher, school contractor, and person volunteering must take to be in compliance with this guidance; …
6. Delineate the statutory authority under which ED and DOJ issued this guidance;
7. Explain why schools must disregard the privacy, “discomfort,” and emotional strain imposed on other students during use of bathroom, showering, and changing facilities and overnight accommodations as these schools comply with this guidance;
This letter is an important move for conservatives on this issue. A few weeks ago, The New York Times criticized “transgender bathroom hysteria,” attacking the North Carolina law reserving multiple-stall restrooms on the basis of biological sex. This law was denounced as “anti-gay,” but more importantly, impossible to enforce. Now, the shoe is on the other foot.
The representatives not only challenged ED and DOJ on where they get the authority to rewrite law, but they also pointed out the absurdity of applying the liberal version of the North Carolina law. How far will “discrimination” go? Will the Department of Justice prosecute teachers who insist boys use the boys restroom and girls use the girls restroom? Will the Department of Education censor a woman volunteer who feels uncomfortable sharing a changing room with a transgender “girl”?
How will these agencies respond to a Christian school when it refuses to comply, citing the belief that God made man male and female? How about a Muslim school which does the same thing?
These are not easy questions to answer, but if federal law is to be applied in this way, it is important for people to know what it means. While Walker clearly denounced the guidelines, the letter merely requested answers. Any response is likely to seem draconian, especially to people and organizations with a religious disagreement on transgenderism.
Next Page: How did we come to this?
The legal battle began when the Department of Justice ruled, on May 4, that the North Carolina bathroom bill violated the Civil Rights Act of 1964. This order introduced the confusion of the terms “sex” and “gender.”
“Sex” or “biological sex” refers to a person’s chromosomal makeup — you have two “x” chromosomes and are female, or have one “x” and one “y” and are male. No amount of surgery can alter your DNA. “Gender,” by contrast, deals with identity. If you identify with the gender corresponding to your sex, you are “cisgender” (also known as normal), while if you identify with the gender opposite your sex, you are “transgender.”
When the Civil Rights Act of 1964 and Title IX in 1972 forbid discrimination on the basis of sex, they applied to having a double standard between the biological sexes. By contrast, LGBT groups are complaining about alleged discrimination on the basis of gender, or more accurately, on the basis of transgenderism.
These old laws do not deal with this new issue, but the Department of Justice and the Department of Education are effectively rewriting them to cover it.
North Carolina’s law was written to protect the privacy of the vast majority of biological men and women who prefer to use restrooms and such facilities dedicated only to their biological sex. Some parents are concerned about the safety of their children (mostly girls using restrooms that could be shared by men). The law only applies to restrooms with multiple stalls, so there is a very easy work-around for the small minority of people who are transgender — make gender-neutral single-stall restrooms.
North Carolina Governor Pat McCrory denounced this move as the federal government “being a bully,” and the state sued the federal government shortly thereafter.
This is not the first time that an overbroad understanding of Title IX has led to increased bureaucracy and reduced freedom. On college campuses, the protection against “discrimination on the basis of sex” has created a “sex bureaucracy” with absurd rules about consent and an eagerness to prosecute any consensual sex that might be retroactively determined “rape.”
With the Supreme Court one justice short, this issue looks unlikely to be resolved before the presidential election.
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