On Friday, May 13th, the Obama administration issued a directive, disguised as guidance, to all schools receiving federal funding which means essentially all schools in the United States with a very small percentage not falling in that category. The directive comes jointly from the United States Departments of Education and Justice. Some on the Left have tried to soften the blow, as has the administration, by stating that the threat of lawsuits is not on the table. However, this is disingenuous once you introduce the Department of Justice into the conversation. In effect, it is a veiled threat.
Many have noted that under Title IX of the Civil Rights Act of 1964, an amendment to that law in 1972, the Obama administration can threaten or actually stop funding schools that receive federal funds of any kind, including student loans, to force compliance. Several states have stepped up to the judicial plate and intend to challenge this threat as an infringement on a state’s policing power. They have a legitimate case.
In effect, by applying Title IX to transgender students the administration is rewriting and expanding the scope of that law. The words of Title IX are clear:
Section 1681. Sex: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…
These words are clear and concise. “Sex” is determined at birth and noted on one’s birth certificate. In 1972 when this law was written and passed, the definition was not “controversial.” One’s sex was determined by the presence of male or female sexual organs, not by what one did with those organs (homosexuals), or by what sex one “identified” with later in life (transgender individuals). By including transgender students under this definitional umbrella, the administration has grossly expanded the purview, intent and actual words of Title IX and thus once again rewritten the law based upon Obama’s personal inclinations.
The question arises as to whether the Federal government can actually withhold Federal education funds if it determines an institution is in violation. In past instances of threatening to do so, it usually involved transportation funds. However, in all of those cases it was a threat coming from Congress. Obviously, this is a viable action under their spending power. When the threat comes from Congress, it thus has greater weight than an Executive interpretation of existing law. Perhaps this is why the administration phrases the “directive” as “advisory.”
Make no mistake, several school districts have asked the Federal government for advice and direction regarding Title IX as it applies to transgender students. But make no further mistake- this action was in reaction to the “controversy” out of North Carolina.
Even here, the administration and the Left and radical gay rights activists get the entire scenario wrong and most likely never read North Carolina’s law. There are, in fact, numerous safeguards for transgender students in that law and schools are required to make reasonable, sometimes costly, accommodations for transgender students.
Further, the Left gets the intent of the law completely wrong by characterizing it as “discriminatory” and based on false assumptions about transgender individuals. Nobody on the Right makes the assertion that transgender people are “perverts” and prone to use the law to do perverted things in bathrooms. In fact, not a single case of a transgender perpetrating a crime can be cited. But to assume that actual perverts will not use the law to do so is stupidity and wishful thinking of the highest order. Already, there are several cited cases of this actually happening, including the 8-year-old girl in Chicago rescued in a restaurant bathroom from just such a pervert. The North Carolina law works on the principle that an ounce of prevention is worth a pound of cure. Except it is actually an iota of an ounce and the cure would be worth a ton!
Additionally, it sullies the Constitution to assert that one has a “right” to use the bathroom or locker room of the sex one identifies with, rather than their biological sex as noted on a birth certificate. If so, then it is a “right” created out of thin air by judicial fiat and stretching of sound constitutional principles and intent, if not the actual words.
While it may be true that students whether transgender or not deserve a school environment that is safe, inclusive and non-discriminatory, they have done a remarkable job achieving just that without interference from the Federal government and threats- veiled or actual- of withholding funding under alleged Title IX violations.
Already we have seen the effects of the Obama administration’s misuse of Title IX. It is the sword used to encourage and uphold draconian college speech codes and treatment of alleged rapes on campus where they have likewise expanded the definition of “rape” and “harassment.” Like the present instance, their reaction was an over-reaction to an isolated incident, or one that, upon proper investigation, was false from the beginning.
Although this writer doubts that the more outlying predictions of co-ed dorm rooms, locker rooms and transgender students showing up on sporting rosters of the opposite biological sex will not occur to such a degree as some say, this is nevertheless a serious intrusion by the Federal government on a state’s policing power. Most colleges and universities and all public elementary and secondary schools are run by the states, not the Federal government. It is the states that should determine the rules of the institutions they administer.
If anything, this directive gives added impetus to the policy of abolishing the Federal Department of Education and getting Washington and all their mandates, directives, threats and interpretations and, yes, funding out of education and return it to its proper place- the states.
The Obama administration has decided to do this now in order to open yet another front in the culture wars. Having succeeded with gay marriage, they are simply moving down the checklist of the radical LGBT agenda. Hopefully, more states will join the 12 that have taken a stance against this directive if not because of the particulars, then on principle lest they find their policing powers neutered in the future in some unrelated area.