03 Jun The Letter Heard Round the World
The Letter Heard Round the World
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.
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.
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 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.