Transgender Public School Bathrooms: Obama’s Overreach

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In an announcement issued jointly by the Department of Justice and the Department of Education, the federal government has issued directives to every public school district in the country, effectively requiring them to open their bathrooms to students on the basis of their perceived gender identity, not on the basis of their sex.

Unfortunately, this does not affect California.  We say, “Unfortunately,” because California already passed a law in 2013 requiring this exact policy in all California public schools.

We at California Family Council strongly oppose this decision, for a number of reasons:

First, we believe that the differences between men and women are real, meaningful, and to be respected.  In sensitive moments (e.g., bathing, dressing, or using the restroom), exposure to a person of the opposite sex is a potentially dangerous and deeply harmful violation of privacy.  Women and girls are particularly at risk in these sensitive moments, due to the threat of physically stronger men engaging in voyeurism or sexual assault.  Allowing biological boys (and even adult men, in the case of 18-year-old seniors) into girls’ restrooms, showers, and locker rooms violates the privacy that common sense and common decency require.

Second, the DOJ/DOE guidelines provide no way to determine whether a student is genuinely experiencing gender identity struggles, or if the student simply wishes to take advantage of girls.  For a student to be treated as a member of the opposite gender, he or she simply needs to request it–there is no requirement for a court order, for a change to one’s birth certificate, for any “transition” surgeries or hormone treatments, etc.  In fact, the DOJ/DOE guidelines threaten that a school could run afoul of Title IX if it tries too hard to verify that a student has honest motives.

Third, this is a lawless act by the Obama Administration.  The DOE and DOJ informed these school districts that any limitation on transgender students’ ability to use whichever bathroom they prefer will run afoul of Title IX.  Title IX is a 1972 law that prohibits discrimination in educational institutions on the basis of sex and various other categories.  The Obama administration is declaring by fiat that “gender identity” or “gender expression” are included in the term “sex” as it was used in the 1972 Title IX statute, even though “sex” refers to physical, biological realities, not to one’s self-expression or perceived identity, which underly the concept of “gender.”  Instead of attempting to have Congress amend the law or even to issue new executive regulations, the Obama administration is simply engaging in a shakedown.  They threaten to withhold critical federal dollars and to file lawsuits against any school district that does not comply with what Obama pretends that Title IX says.  It is an unacceptable abuse of federal, executive power.

Fourth, it is yet another act of separating parents from children.  The regulations do not require parents to inform schools of their child’s newly perceived “gender identity,” and schools are not even allowed to tell parents of the child’s new “gender” if the child does not wish it.

We at California Family Council are not heartless.  If there are students in public schools who have genuine confusion about their gender identity, or who feel genuinely uncomfortable about using restrooms or showers with other students of their own sex, we think reasonable accommodations can and even should be made for these students.  But these accommodations should not come at the cost of threatening the privacy or safety of other students, particularly when there is no effort to screen out dishonest opportunists.  Boys and girls should not use the same restrooms, showers, or locker rooms at the same time, period.

In fact, the principle that men and women need privacy in the context of changing, bathing, or using restrooms is found throughout American law.  For example, within a jail or prison, it is a violation of the Fourth Amendment for a correctional officer of one sex to monitor an inmate of the opposite sex while he or she is dressing, bathing, or being strip searched.  The case law supporting this principle is full of affirmations that being exposed to a member of the opposite sex unwillingly is a severely harmful and offensive intrusion upon a person’s (even a convicted murderer’s!) reasonable expectation of privacy.  How is it that our culture can have a greater respect for the privacy of convicted criminals than for teenage girls in high school locker rooms?

Jonathan Keller and I recorded a podcast on the question–give it a listen!

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