Having trouble viewing this email? Click here
The Letter Heard Round the World
It has been two weeks since the Obama administration sent out the letter heard round the world – the stunning “Dear Colleague Letter” requiring schools to allow students to use restrooms and locker rooms “consistent with their gender identity,” defined as “an individual’s internal sense of gender,” which “may be different from or the same as the person’s sex assigned at birth.” Schools that do not comply with this guidance letter may risk losing federal funding.
If you are concerned about the legal implications of this federal overreach, and the risks this creates for student safety and privacy, we at United Families International share your concerns. So do thirteen states, who have since filed a lawsuit against the Federal Government.
We invite you to read today’s informative alert by UFI Board member Bill Duncan, who discusses both the Dear Colleague Letter, and the states’ lawsuit which Mr. Duncan explains is intended to “prevent a massive rewriting of a forty-year-old statute without Congressional oversight.”
Faithfully for Families,
Laura Bunker
United Families International, President
States Challenge Administration’s Shower and Restroom Policy
by William C. Duncan
by William C. Duncan
As surely all readers now know, on May 13, 2016, a letter was sent to school officials across the nation, jointly authored by officials in the U.S. Department of Education’s Office of Civil Rights (OCR) and the Department of Justice. The letter provided “guidance” to about how they should treat students of one sex who desire to present themselves as members of the opposite sex at school.
Although the letter covers a wide range of issues, the attention paid to it focuses on the guidance the government officials gave regarding restroom and locker room policies, and the way schools should deal with concerns from parents about school policies on these issues.
A letter like this is important because, despite the collegial way it is packaged (the letters are referred to as “dear colleague” letters), schools know that the guidance has legal implications for them. In fact, this letter specifically cites the possibility that schools could lose federal funding (i.e. money from taxpayers who support the schools) if they do not comply.
History and Context
To understand, some context is helpful. In 1972, Congress passed a statute, Title IX, prohibiting sex discrimination in education. It specifically allowed, however, for schools to continue to have sex segregated facilities like locker rooms and restrooms, for obvious reasons of privacy and safety.Now, in the last few years, officials in some government agencies have begun to propose that when federal law refers to sex discrimination, it really also means any distinction based on newer concepts like sexual orientation and gender identity (the belief that a person can be born male or female but in their essence actually be the other sex). Government officials have tried, with mixed success to persuade courts to accept these interpretations.
To understand, some context is helpful. In 1972, Congress passed a statute, Title IX, prohibiting sex discrimination in education. It specifically allowed, however, for schools to continue to have sex segregated facilities like locker rooms and restrooms, for obvious reasons of privacy and safety.Now, in the last few years, officials in some government agencies have begun to propose that when federal law refers to sex discrimination, it really also means any distinction based on newer concepts like sexual orientation and gender identity (the belief that a person can be born male or female but in their essence actually be the other sex). Government officials have tried, with mixed success to persuade courts to accept these interpretations.
This is significant because these government agencies are charged with enforcing federal discrimination statutes. So, a decade or so ago, the agencies would have to tell someone who complained about what they thought was unfair treatment because of their gender identity, that the agencies could not help them since the law only covered sex discrimination, understood as treating men or women as a group worse because of bias against either sex. When the agencies reinterpreted the prohibitions on sex discrimination, the authority of the agencies necessarily increased.
Title IX is one of those statutes. It applies to schools that receive even a slight amount of taxpayer support.
What Checks are Possible on the Authority of Government Agencies?
The only checks on the agencies’ authority to reinterpret the law in this way are (1) Congress specifying that the law does not mean what they say or (2) federal courts ruling the interpretation is too far afield of what Congress initially intended in writing the statute.
The only checks on the agencies’ authority to reinterpret the law in this way are (1) Congress specifying that the law does not mean what they say or (2) federal courts ruling the interpretation is too far afield of what Congress initially intended in writing the statute.
The second check is most common, but often ineffectual, since the courts tend to defer to the agencies’ interpretations. This was true in a recent case in Virginia where OCR insisted a school go along with a student’s desire to use the restroom and locker room of the opposite sex because the student now identified as a member of that sex. Perhaps having that court accept its authority to issue the new interpretation emboldened OCR and the Department of Justice to issue its new policy.
The New Policy According to the “Dear Colleague Letter”
The policy tells schools what the OCR requires them to do to avoid being found guilty when a student files a complaint of gender identity discrimination. Among other things, they must allow a student to use the restroom or locker room of the opposite sex if the student identifies themselves as a member of the other sex.
The policy tells schools what the OCR requires them to do to avoid being found guilty when a student files a complaint of gender identity discrimination. Among other things, they must allow a student to use the restroom or locker room of the opposite sex if the student identifies themselves as a member of the other sex.
The directive specifically precludes the school considering whether the student has a medical diagnosis or treatment. It also specifically tells schools they must not consider concerns of parents or of other students. In the past, some schools have tried to accommodate the student by providing a single user facility since this would not require the student to use a restroom they felt inconsistent with their identity and could protect the privacy of students who were hesitant to share a shower with a person of the opposite-sex. The directive says this option is not legally allowed.
In sum, the administration has advanced an extreme, ideologically-driven policy that precludes input from those affected and specifically forbids efforts to accommodate all of those affected by the policy. This no-compromise policy is exactly the wrong way to alleviate concerns and allow schools to come up with solutions that protect the dignity, safety and privacy of all students.
For that reason, thirteen states have filed suit challenging the agency’s novel interpretation of Title IX. They point out that in making a rule of this significance, basic procedural safeguards should have been, but were not, followed and the resulting rule is beyond the authority of OCR to create. This attempt to prevent a massive rewriting of a forty-year-old statute without Congressional oversight is a welcome development.
Most importantly, it will allow states and local school districts to consider all points of view and work for mutual accommodations which will provide for everyone’s physical needs while protecting privacy and safety for all.
William C. Duncan is the director of the Marriage Law Foundation and of the Sutherland Institute’s Center for Family and Society. He was previously acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor. He has published numerous articles on constitutional and family law issues in a variety of legal journals.