Back in 2016, former President Barack Obama’s administration issued a new rule which put “transgender rights” in public schools under the aegis of Title IX — essentially meaning that school districts that didn’t let students use the facilities of their choice, even without a valid medical diagnosis, could be subject to punishment under the anti-discrimination legislation.
The decree, jointly issued by the Education and Justice Departments, caused a hue and cry among conservatives, and Trump administration quickly moved to distance themselves from the Obama-era policy. In February of last year, the administration reversed the “guidance” that the Obama administration had issued.
However, advocates for transgender access to the bathrooms or facilities of their choosing still held out hope that the Education Department would consider the Obama administration’s interpretation of Title IX valid. Last week, those hopes were finally and definitively dashed.
In a statement to BuzzFeed News on Thursday, Education Department spokeswoman Liz Hill said that while transgender discrimination complaints of other types would still be investigated by the agency, complaints about bathroom access would be rejected out of hand.
Hill “responded ‘yes, that’s what the law says’ when asked again if the Education Department holds a current position that restroom complaints from transgender students are not covered by a 1972 federal civil rights law called Title IX,” Buzzfeed reported.
Asked for clarification, Hill said Friday that “Title IX prohibits discrimination on the basis of sex, not gender identity.”
“Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX,” Hill told BuzzFeed.
“In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
BuzzFeed writer Dominic Holden called the Education Department’s stance “the Trump administration’s latest step to rescind and undermine LGBT protections,” citing positions taken by Attorney General Jeff Sessions about whether or not bakers can refuse to provide cakes to same-sex weddings and President Trump’s decision to rescind an Obama-era order that would allow transgender individuals to serve in the military, inter alia.
While all of those things can be argued about (and we do argue about them quite frequently in these pages), one position that is almost impossible to legitimately argue without convoluted rhetorical gymnastics is the idea that the intent of Title IX had anything to do with transgender individuals or gender identity.
Whether or not you feel that Title IX was passed in a less enlightened time — one where society at large simply didn’t understand transgenderism the way that we do now — that doesn’t substantively change the language or meaning of the law. Reinterpreting what you think you would like it to mean to fit the political needs of the day will not, alas, change the law.
If transgender advocates want unrestricted bathroom access for transgender individuals under the aegis of federal civil rights protections, there is a way to do this: lobby Congress, get them to pass a bill, and then either get the president to sign it or have the legislature override his veto. That’s how this whole thing works.
The reason why transgender bathroom access advocates aren’t actively pursuing this route is simple: They would fail. America, by and large, does not believe that forcing public schools to allow students without a valid clinical diagnosis to use whatever bathrooms they want is a good idea. This is an issue of local control — and politicians who would seek to take away that local control would be voted out of office with a decided swiftness.
For all the LGBT community’s grousing over the administration’s decision “to rescind and undermine LGBT protections,” as Mr. Holden put it, these protections aren’t part of the law. To pretend otherwise — that this is somehow protecting minority rights — is foolish and unsupported by the facts. There is no established case law that you have the right to use the bathroom of your choosing, and Title IX certainly doesn’t provide it.
The left may be outraged, but outrage doesn’t erase the fact that the Trump administration made the right decision.
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