There was quite a bit of controversy in February of this year when the Trump administration’s Department of Education withdrew the two “letters” on transgenderism in education issued by the Obama administration in 2015 and 2016. But it has gone almost unnoticed that the Department’s Office of Civil Rights essentially re-instated the content of those two documents in “instructions” made public on June 6, 2017.
Title IX prohibits sex discrimination in federally funded programs. Passed by Congress in 1972, that is, some forty years before the issue of transgenderism ever came up, it is the law that forced sex equalization on sports programs at schools and colleges. Beginning in the 1980’s and continuing to the present, the Department has used the law to oversee and regulate “sex harassment” and “hostile environments” and even “sexual violence” at schools and colleges.
It was not until 2015, however, that the Obama Education Department, deliberately avoiding the formal rulemaking required by the law governing federal agencies, made a comprehensive statement that it intended to add “gender identity” to “sex discrimination.” In a January 7, 2015, “letter,” the Office of Civil Rights (OCR) stated that it was interpreting Title IX to include “gender identity and failure to conform to stereotypical notions of masculinity and femininity.” It cited case law but failed to point out that none of the cases were about Title IX. It followed that up on May 13, 2016, with another “letter” which it called “significant guidance,” and concerning which it made the false statement that incorporating transgenderism into its regulatory duties did “not add requirements to applicable law.”
This was the now-famous letter requiring sex integration in school bathrooms. Unlike past “guidances” that avoided definitions, the Department of Education, issued several new definitions in the letter and stated that it would enforce those definitions with legal action. “Gender identity” was defined as an “individual’s internal sense of gender,” while “transgender” individuals were those “whose gender identity is different from the sex they were assigned at birth.” “Gender transition” was “the process in which transgender individuals begin asserting the sex that corresponds to their gender identity.” Concerning “restrooms and locker rooms,” the new policy held that if schools continued to maintain separate facilities by sex, students must be allowed to use those facilities based on their gender identity.
In February of this year, the Department’s Office of Civil Rights withdrew both documents and enunciated two important principles. First, OCR stated that “there must be due regard for the primary role of the states and local districts in establishing educational policy.” Second, and even more importantly, it held that the prior documents on gender identity did “not contain extensive legal analysis or explain the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
However, on June 6, 2017, OCR ignored those principles and effectively reinstated the Obama transgender policy. Five specific areas are now given where OCR may “assert subject matter jurisdiction” over transgenderism. First, in a broad statement of policy, OCR states that it may act when a transgender student files a complaint alleging sex discrimination. OCR may also assert jurisdiction if it finds that “sexual” or “gender-based” harassment creates a “hostile environment” for transgender students. An example given is the failure by a school to use the “preferred name or pronoun” of the transgender student. Third, schools and colleges must take affirmative steps to address such hostile environments, and, fourth, may not retaliate against a transgender student who raises a sex discrimination complaint. Lastly, a school may not engage in “differential treatment” of a student based on “sex stereotyping,” that is, “a student’s failure to conform to a stereotyped notions of masculinity and femininity.” Thus, for transgenderism, it’s on again.
Two court cases involving the meaning of the phrase “sex discrimination” in Title IX were put on hold or dismissed when the Department canceled the Obama policy in February. Now that the Department has canceled its cancellation, it remains to be seen whether those cases will be revived. It is worthwhile to note, however, what both cases had to say about the original meaning of “sex discrimination” in Title IX.
In Franciscan Alliance v. Burwell, a federal district court had ruled that “the text, structure, and purpose” of Title IX showed that Congress unambiguously “intended to prohibit sex discrimination on the basis of the biological differences between males and females.” And in GG v. Gloucester County School Board, a federal appeals court actually agreed with the district court in that case that “the only reasonable reading” of the law was that it referred “unambiguously to males and females.” However, the appeals court went on to contradict this “straightforward conclusion” by unaccountably going on to say that there was “more than one plausible reading” of the law. The court invoked a bandwagon effect by saying that other federal agencies were contemporaneously advancing the same gender-identity agenda as the Education Department.
In the end, we are left wondering what happened between the Trump Education Department’s declaration of two important principles of law and of the Constitution in February and its capitulation on transgenderism in June.
Thomas Ascik retired as an assistant U.S. attorney last year.