And so he—that is, his Departments of Justice and Education—have issued this letter of “guidance.”
I sometimes wonder whether Obama is trying to sabotage Hillary Clinton’s chances of getting elected. Because I think that this “decree” is the sort of thing likely to anger a lot of people, even many liberal Democrats:
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.
It does not have the force of law, but it contains an implicit threat: Schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid.
A great many schools have been already allowing transgender students to use the facilities of that person’s self-identified gender, but this has been mainly done through decisions made at the local level. I don’t think there are all that many parents—even liberal ones—who will be very happy at the Obama administration’s letter, and the Times comments section bears this out, with plenty of people saying the equivalent of “I’m a liberal, but this makes me mighty uneasy.”
Obama’s reaction: tough. Your discomfort, or that of your child, is quite irrelevant:
“A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so,” according to the letter [from the administration], a copy of which was provided to the New York Times. A school’s obligation under federal law “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,” the letter states. “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.”
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.
In this case—as in so many others—the process by which Obama is trying to do this is very problematic. Under what authority is the federal government interfering with school rules about bathrooms? Obama’s argument is that it’s a civil rights issue and therefore not a local issue:
Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status. The guidance makes clear that both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX.
Would the courts, including the Supreme Court, actually enforce this in the particular way envisioned here? I don’t think it’s at all clear that this comes under the banner of discrimination by sex as it is usually defined, because it applies equally to transgender boys and transgender girls. That wouldn’t stop the highest court from saying it does, however, but the proper way to approach it is to duke it out in the courts. Don’t do this by executive fiat. But executive fiat is the way Obama prefers to do everything he can’t accomplish through Congress or the courts, or that he can’t accomplish fast enough to suit him. We can expect him to keep on pushing his agenda in this manner until his very last moment in office.
Hillary Clinton and Donald Trump (at least, in one of his comments) have seemed to favor something similar. Trump’s most recent statement, however, is that he thinks it should be a state issue, which is a rare instance of Trump defending federalism (which would be encouraging—that is, if he actually means it). If you want to read much more on the subject of what this means beyond the particular issue of transgendered children in school bathrooms, read this and this.
Whatever is going on with transgender students psychologically and physically (and we can, and have, argued about that on this blog, because it’s not completely clear) the schools they attend face a very difficult dilemma. Various accommodations have been made by states, or by administrators on a district-by-district or a school-by-school basis, and there have been a number of lawsuits from unhappy students, as well. The issue is working its way through the legal system. Until courts rule otherwise, there’s no reason it couldn’t have been allowed to play out that way—except, of course, that Obama and the left didn’t feel like leaving it that way and saw no reason not to use their muscle to make it happen. Yes, they can; after all, who’s going to stop them?