The U.S. Supreme Court then withdrew from ruling on a case regarding implementation of the guidelines.
The Obama administration’s Departments of Justice (DOJ) and Education (DOE) sent a “Dear Colleague” letter to public schools in May 2016 reinterpreting the word “sex” in the Title IX law, which prohibits discrimination “on the basis of sex” in an education program or activity, to mean “gender identity.”
The letter declared, in part, “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”
Schools that did not comply faced the threat of lawsuits and the loss of federal funding.
After the Obama directive, Texas led a 13-state coalition in suing DOJ and DOE to overturn the guidelines, alleging illegal federal overreach. In August 2016, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas granted a temporary injunction, ruling the federal government did not grant states enough notice or give them a chance to comment on the guidelines before they were issued.
In February 2017, the Trump administration’s DOJ and DOE sent another Dear Colleague letter to the nation’s public schools, this time stating the Obama administration’s directives do not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.
“In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy,” the letter said. “The Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved.”
Virginia Ruling Vacated
Gavin Grimm, a Virginia transgender boy, sued the Gloucester County School Board in 2015, alleging the board sexually discriminated against Grimm by forbidding the use of the boys’ bathroom.
The U.S. Supreme Court was scheduled to hear Gloucester County School Board v. G.G. on March 28, but on March 6, the Supreme Court ordered Virginia’s Fourth Circuit Court of Appeals to reconsider its ruling in favor of Grimm.
“The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017,” the Supreme Court wrote in its order.
‘Erasure of Women and Girls’
Kara Dansky, board chair of the Women’s Liberation Front, which filed a joint amicus brief in the Supreme Court with the Family Policy Alliance, says the Obama administration letter undermined protection of women’s rights.
“Interpreting ‘sex’ to mean ‘gender identity’ for Title IX purposes results in the erasure of women and girls as a category worthy of legal protection,” Dansky said. “For thousands of years, women and girls were excluded from the educational arena because of our biology, and Title IX was enacted specifically in order to remedy that problem. Reinterpreting sex to mean gender identity renders sex meaningless as a legal category because it means that anyone, including a man, can ‘identify as a woman.'”
Dansky says courts should acknowledge and respect what it means to be female.
“The court should rule that sex is a meaningful category and that women and girls are entitled to legal protection in the educational arena as women and girls,” Dansky said.
“Women and girls have been oppressed for thousands of years because of our sex, not because of our identity,” said Dansky. “Girls are aborted and killed all over the world because of their sex, not because of their identity. To pretend otherwise is to deny the reality of what it means to be female.”
Calls for Local Control
Larry Sand, president of the California Teachers Empowerment Network, says the federal government should not be involved in this issue.
“It should be an issue left to the states to decide,” Sand said. “Even better, let individual schools or districts determine how to handle the situation. Transgenderism is estimated to afflict about 0.3 percent to 0.6 percent of the population. So, an elementary school with 500 kids will have between one and three students who consider themselves to be born in the wrong skin. Given that likelihood, why does Washington, DC see the need to get involved?”
Sand says true education choice would help prevent these types of problems from becoming big issues.
“The debate would be at least somewhat defused if parents had real choice,” Sand said. “That way, any parent could opt out of their local public school if that school was forced to comply with the transgender mandate or any other mandate that parents didn’t think was a good fit for their child.”
Teresa Mull ([email protected]) is a research fellow in education policy at The Heartland Institute.