There is about eight months left to President Obama’s administration, and some significant doubt as to what will follow. Some have figured out that this means they have to work fast to assure their agenda happens, as they would rather ask for forgiveness than permission. You see, a fait accompli is hard to undo.
As reported in the New York Times, the plan is to make it happen now so that whoever takes office in January, whoever gets to sit at their desks in the next administration, they will have a legacy left behind. And today is the day they will make that happen.
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” John B. King Jr., the secretary of the Department of Education, said in a statement. “We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”
King’s words sound sweet, but they’re sadly disingenuous. When he says “no student,” he doesn’t mean it. He’s a smart guy, so it’s fair to assume he knows he’s lying and just doesn’t care. After all, if he spins his words carefully, he might get away with the lie.
The Obama administration is planning to issue a sweeping directive telling every public school district in the country to allow transgender students to use the bathrooms that match their gender identity.
A letter to school districts will go out Friday, adding to a highly charged debate over transgender rights in the middle of the administration’s legal fight with North Carolina over the issue. The declaration — signed by Justice and Education department officials — will describe what schools should do to ensure that none of their students are discriminated against.
That didn’t take long. It seems as if it was only days ago that Attorney General Loretta Lynch brought suit against North Carolina for enacting a law to prevent placing the interests of transgender folks above the interests of others. Now here they are, sending out a letter to every school district in the nation, telling them the same.
There is no copy of the letter attached to the article, so it’s hard to know for sure how far the administrators are pushing the agenda. Is it just bathrooms? Locker rooms too? There is no rational basis to distinguish between the two. But then, how is it policed, determined whose gender fluidity is real gender fluidity.
Remember, these are school kids, and it’s not outside the realm of possibility that thousands of high school guys simultaneously get the idea that if they say they identify as females, they get to storm the girls’ showers and relive Porky’s. And if mom won’t go along with the joke, all it takes is a forged note to the school. Because no kid has ever done that before.
This would, of course, be terribly wrong, but then, terribly wrong things happen all the time in real life. But the letter anticipates this challenge, and not only gives rise to a heretofore unconceived definition of sex discrimination, but some “best practices” for schools to employ.
As soon as a child’s parent or legal guardian asserts a gender identity for the student that “differs from previous representations or records,” the letter says, the child is to be treated accordingly — without any requirement for a medical diagnosis or birth certificate to be produced. It says that schools may — but are not required to — provide other restroom and locker room options to students who seek “additional privacy” for whatever reason.
Attached to the letter, the Obama administration will include a 25-page document describing “emerging practices” that are in place in many schools around the country. Those included installing privacy curtains or allowing students to change in bathroom stalls.
This may answer some of the more obvious questions, even if it falls into the problem of stigmatizing some students and compelling them to “out” themselves to their parents. It puts the onus on schools to recreate their facilities, at schools’ expense. And it raises as many questions as it answers, not the least of which is what authority is there for the imposition of this shift in the first place?
Aside from the fact that the Obama bureaucrats are short-timers, what emboldens them to take a deep dive into a radical shift in their interpretation of discrimination law, ignoring that they have moved from the immutable characteristics that formed the basis of law up to now into the concept of “fluidity” and “social construct,” for which no rules of the game exist?
Courts have not settled the question of whether the nation’s sex discrimination laws apply in matters of gender identity. But administration officials, emboldened by a federal appeals court ruling in Virginia last month, think they have the upper hand.
In the Grimm case, the Fourth Circuit held that the district court failed to adequately give deference to the guidance of Catherine Lhamon at the DoE Office of Civil Rights. That’s quite a distance from ruling that sex discrimination includes transgender discrimination, but given that there is a good chance Lhamon, and Main Justice’s civil rights chief, Vanita Gupta, won’t be around much longer, it’s the best they’re going to get. And they’re going to make this happen before they go.
“Schools want to do right by all of their students and have looked to us to provide clarity on steps they can take to ensure that every student is comfortable at their school, is in an environment free of discrimination, and has an opportunity to thrive,” wrote Catherine E. Lhamon, the assistant secretary of education for civil rights, and Vanita Gupta, the head of the Justice Department’s Civil Rights Division.
And this is where the lie is revealed. This radical shift will not “ensure that every student is comfortable at their school,” but that some are at the expense of others. Before, legitimate transgender students were not comfortable. Whether this will make them comfortable is debatable, but that is certainly the intent. That comfort will come at the loss of comfort of others who will be made decidedly uncomfortable by the loss of their privacy in bathrooms and locker rooms.
But this is just about bathrooms and locker rooms, and not about the myriad issues of discrimination that have arisen under Titles VII and IX? Don’t be silly. This is law, and once the wall is breached as to what constitutes unlawful discrimination, the door is wide open to the full panoply of actions.
Where this is heading, what mischief this will cause, how the rules developed, with enormous difficulty and conflict up to now, will play out is a mystery, but a couple of administrators are trying to fundamentally re-engineer society before they’re forced to find new jobs. And they just used their authority over federal funds to ram it down your kid’s school’s throat. Screw North Carolina. This just came to your neighborhood.
Update: The joint letter of the DoE and DoJ, signed by Catherine Lhamon and Vanita Gupta, provides:
As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations. The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.
Apparently, the report that a parent’s notification would be required was inaccurate:
The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.
And the question of the tradeoff of rights, in this instance, is clear:
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.
And a new wrinkle, Housing:
Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students.
Meet your child’s new roommate?