Obama’s Unconstitutional Power Grab Over School Bathrooms

Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. This letter summarizes a school’s Title IX obligations regarding transgender students and explains how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) evaluate a school’s compliance with these obligations.

ED and DOJ (the Departments) have determined that this letter is significant guidance. This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.

It mandates schools receiving Title IX funding ensure they prove a “safe and nondiscriminatory” environment. It also mandates schools treat students consistent with their gender identity, even if their education records indicate a different sex.

Regarding sex segregated activities and facilities they write:

Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. 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.

This includes restrooms, locker rooms and athletics.

“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” Attorney General Loretta E. Lynch said in a released statement.  “This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.  I look forward to continuing our work with the Department of Education – and with schools across the country – to create classroom environments that are safe, nurturing, and inclusive for all of our young people.”

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” said U.S. Secretary of Education John B. King Jr remarked in a released statement.  “This guidance further clarifies what we’ve said repeatedly – that gender identity is protected under Title IX.  Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law.  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.”

The overall problem with their position (outside of the inherent problems this causes for schools) is that their is nothing in the federal code or the Constitution that allows this. Gender identity is not protected in the Civil Rights Act, therefore the appeal to Title IX is moot. This does violate the constitution in that you 1. have the executive branch adding to the law something Congress did not pass, and 2. this represents a clear violation of the 10th Amendment.

Also this disregards the right of women and girls (as well as men and boy in the opposite case) to have a reasonable expectation of privacy.

“The administration’s new guidelines simply reinforce what has been abundantly clear already—that it has a political goal of forcing women to share restrooms and locker rooms with men across the nation and will spread falsehoods about federal law to achieve its aims. This is precisely why we have filed two federal lawsuits, one in Illinois and one in North Carolina, on behalf of parents and students who are understandably concerned about their children. Solutions exist to accommodate everyone without violating anyone’s privacy rights, but the administration won’t entertain those solutions because of its preference to unlawfully impose its political will through threats and intimidation,” Jeremy Tedesco, senior counsel with Alliance Defending Freedom said in a released statement.

“Studies show that one in four girls and one out of every six boys under 18 will be sexually assaulted. This unconstitutional mandate only increases those statistics. School districts that allow boys to use the girl’s restrooms, locker rooms, and showers are placing girls at risk. They will be held accountable for sexual assaults. Congress has repeatedly rejected attempts to include ‘gender identity’ or ‘sexual orientation’ in federal law. I encourage schools to fight for the privacy and protection of students and reject the Obama bullies,” Matt Staver, founder and chairman, of the Liberty Counsel stated.

“The ideologues have no legal basis for this decree. The Constitution doesn’t allow it. Nor does Title IX of the Civil Rights Act (the fragile peg on which they hang this coal of mail), which prohibits discrimination in schools on the basis of “sex” but not “gender identity.” The vast weight of legal authority is clear on this. But Obama assumes (not without reason) that most state and local officials will roll over rather than risk the almighty dollar,” Attorneys Emmett McGroarty and Jane Robbins of American Principles Project wrote in an op/ed at The Pulse 2016.

McGroarty and Robbins outlined a plan for schools and states to fight back.

• Challenge the feds in court, as North Carolina has done. Every sane governor, state school superintendent, and state or local board of education member should be willing to put his or her name on a lawsuit defying the federal government.
• If necessary, give up the federal money. Yes, give it up. For most states, federal funding constitutes less than ten percent of the education budget. Much of that could probably be recouped by not having to comply with the endless federal regulations and the maintenance of federal programs which serve the interests of neither the states nor students. Imagine the freedom of throwing off the federal shackles — and the satisfaction in watching Lynch & Co. sputter and spew in utter impotence. (This applies to private schools as well — accepting any federal funding risks subjection to evil.)
• On an individual level for elected officials, if all else fails, resign. Every elected official should be willing to go out in a blaze of glory rather than preside over implementation of such a monstrous policy. Be an example of courage for our children.
• On an individual level for parents, pull your children from the public schools until this policy is defeated. If alternatives are cost-prohibitive, join with other parents to find creative ways to accomplish the goal. Our children are at stake.”

“The Obama Administration once again overstepped legal boundaries by redefining the scope and reach of the Civil Rights Act of 1964 and slapping the heavy hand of government on local schools.  Whether or not people who identify as transgender are indeed a protected class will get worked out in the courts.  Meanwhile, schools all over this nation, which have rightly worked on a case-by-case basis to accommodate kids struggling with gender dysphoria, may be forced to violate the privacy of other students and perhaps even create trauma for the very kids Obama pretends to protect,” Penny Nance, CEO and President of Concerned Women for America said in a released statement.

“Local school districts with the input of parents and health professionals should be setting school policy on such a sensitive and controversial issue, not Washington.  Finally, the left always uses children to accomplish it’s goals of social reengineering. The adults closest to these children should decide what’s best for all the children in the school.  Safety and kindness should be the guiding principles, not threats from the bullies in Washington,” Nance added.