Approximately one month ago — curiously on Friday the 13th — the Obama administration issued what may be its most bizarre and overreaching edict to date. The U.S. Department of Education and the Justice Department sent all schools a sternly worded “guidance” letter effectively ordering them to open campus restrooms, locker rooms and showers to any student who so chooses, regardless of their sex.
By way of an eight-page memo the federal government has taken control of restrooms from local school systems and turned decision making over to Washington bureaucrats. What’s worse, it doesn’t care what safety concerns the order causes non-transgender students who now are forced to share restrooms, locker rooms and showers with pretty much anyone. The government’s response: Deal with it.
The federal guidance bluntly says schools “must allow transgender students access to such facilities consistent with their gender identity.” Birth sex does not matter, only a student’s self-identified gender. If schools refuse to comply with the mandate they could risk losing federal funding. Principals and teachers in Alabama already employ considerable discretion over how to accommodate transgendered students. These cases are usually resolved in consultation with the student’s parents, teachers and principals. Most often the result is for the student to use a single-occupancy restroom. However, even that common sense solution isn’t acceptable to the administration which states “a school may not require transgender students … to use individual-user facilities.”
Needless to say the guidance letter has caused an uproar among parents and school systems who rightly feel the Obama administration is legally out of bounds. The joint Education-Justice Department letter bases its controversial order on an erroneous interpretation of a four-decades-old federal law prohibiting sex discrimination in school programs and activities. The letter claims Title IX of the Education Amendments of 1972 also applies to discrimination based on a student’s gender identity. This is a ridiculous legal contortion that will not stand up to a court challenge.
Title IX as passed by Congress clearly forbids discrimination in school programs “on the basis of sex,” not gender preference. Furthermore the 1975 regulation that implements Title IX expressly authorizes “provid[ing] separate toilet, locker room and shower facilities on the basis of sex.” To underscore the meaning of the law, Congress itself debated the question of men and women using the same facilities as a consequence of the new law. To clarify its intent Congress passed an amendment declaring that “nothing contained herein shall be construed to prohibit any education institution … from maintaining separate living facilities for different sexes.” There is no ambiguity.
‘Radical social experiment’
What seems clear is the Obama administration’s intent upon pushing a radical social experiment as far as possible during its waning months of power. After the Obama administration’s surrogates in Congress were unsuccessful in passing similar legislation promoting transgender access to school facilities, it has taken a familiar course — go around Congress and impose its agenda by executive fiat. However, this tactic has its limits.
While Congress has been hamstrung by the Obama administration’s end-run maneuvering, America’s conservative attorneys general have not. We have formed coalitions to fight the administration’s illegal power grabs in federal court and have been successful in halting some of the Obama White House’s more egregious actions, including the granting of amnesty to illegal aliens and imposing draconian water use limitations on private property owners.
As attorney general of Alabama, I swore an oath to enforce the law. If the law is being applied in an illegal manner, it is my duty to challenge those who are acting in defiance of the law. Accordingly, I have joined with 10 other states in taking the Obama administration to federal court over its illegal transgender school restroom order. Since we filed our lawsuit two more states have expressed interest in joining us.
Understandably my office has received numerous inquiries from educators and others across Alabama about how to respond to the federal guidance letter. On May 26, I wrote the State Board of Education giving my advice that Alabama educators simply ignore the federal edict until our federal lawsuit is resolved.
This administration has too often abused the levers of power to force its will on the American people. Decisions as consequential as those promulgated by the administration’s guidance letter deserve to be scrutinized and approved by Congress with the input of the people, not forced on the public by unaccountable bureaucrats.
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