Unpacking the Obama Administration’s School Bathroom Guidelines

Synopsis: On Friday, May 13, the Obama Administration’s federal Department of Education and federal Department of Justice jointly issued a set of guidelines reinterpreting federal law for schools that receive public funds—like K-12 public schools and many colleges and universities. The guidelines indicate that to continue receiving funds these schools must let biological males who claim to be female use the girls’ restrooms, locker rooms, showers, and similar facilities at school, and vice versa. The guidelines also address male and female student housing at schools. Needless to say the new federal guidelines have created quite an uproar. Below are some questions and answers providing an overview of the guidelines and their implications.

What Did the Obama Administration Issue? The Obama Administration’s federal Department of Education (DOE) and federal Department of Justice (DOJ) jointly issued a set of guidelines for schools receiving public funds. Federal guidelines are different from federal laws—which are passed by Congress. They are more like executive orders; these are directives explaining how government agencies and recipients of public funds should operate to comply with or carry out federal laws. In this case, the DOJ and DOE have issued guidelines purportedly explaining to schools how they should comply with Title IX of the federal education laws. The truth is the so-called “guidelines” drastically reinterpret federal law. The Executive Branch does not have the authority to change or reinterpret federal law.

What Do the Guidelines say? The guidelines are for schools that receive public funds and are affected by Title IX of the Education Amendments of 1972. Congress passed Title IX in 1972 to prevent discrimination in education on the basis of sex. The Obama Administration is trying to reinterpret federal law by claiming “sex” as used in Title IX actually means “gender identity,” instead of “biological sex.” As a result, the guidelines claim schools who receive federal funds must let boys who claim to be girls use the girls’ restrooms and locker rooms; they cannot be asked to use a separate facility of any kind, if they do not want to. These guidelines represent a gross and inaccurate reinterpretation of a longstanding federal law.

Do These Guidelines Affect Schools in Arkansas? Yes. The guidelines affect schools that receive public funds in all fifty states—including Arkansas.

What Should Schools Do? Many experts say schools should protect student safety and privacy by disregarding these federal guidelines. Giving any male who claims to be a female access to the girls’ bathrooms and locker rooms—and vice versa—fails to protect students’ privacy and safety. Many attorneys believe it is reasonable for schools to let students who disagree with their biological sex use a separate facility—such as a single-stall, unisex restroom or shower—as many schools around the country have done. However, it is potentially dangerous to give students of all ages free rein to pick and choose which restrooms or locker rooms they use.

Why Did the Obama Administration Issue These Guidelines? It is unclear. States and municipalities have passed legislation dealing with this issue in varying ways. Some jurisdictions say each student must use the facility that corresponds with his or her biological sex. Other jurisdictions let students use the facility of their choice. Others make single-stall, unisex restrooms or similar facilities available for students who disagree with their biological sex. Moreover, this issue has been and is currently being litigated in different courts. These radical, new guidelines from the federal government further polarize a complicated situation and seem completely unnecessary.

What Does This Mean for Public Schools? Public schools are now caught between a rock and a hard place. If they comply with the guidelines, they may face lawsuits from students and their families; currently 51 families in one Illinois school district are suing the district and the DOE because the school adopted a policy letting a boy in the girls’ locker rooms. However, if schools do not follow the guidelines, they may be penalized by the federal government—which may land the school in court. The safer route, however, seems to be for schools to side with students by protecting student privacy and upholding student safety; that means keeping boys out of the girls’ restrooms, and girls out of the boys’ restrooms, plain and simple.

What Does This Mean for Colleges? Besides affecting restrooms and locker rooms, colleges and universities could be forced to let biological males room with female students; the guidelines say, “a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations.” Colleges that do not comply may face legal action from the federal government, while colleges that do may face lawsuits from students.

Do These Guidelines Affect Sports? Title IX has been used to ensure schools provide girls’ sports as well as boys’ sports, and that girls as well as boys have ample opportunity to participate in interscholastic activities. Reinterpreting Title IX could force a school or college to let a biological male who claims to be female play girls’ sports. In 2014 a transgendered martial artist brutally injured a female opponent in a mixed martial arts fight, giving her a concussion and breaking her eye socket. The federal government’s new guidelines could place female athletes at increased risk.

Does this Affect Private Schools? It is unclear. Most K-12 private schools receive no federal funds, so federal Title IX guidelines would not apply to them. However, lawsuits challenging private school restroom and dressing room policies could result in courts ordering private schools to accommodate transgender students in a way similar to the Title IX guidelines. Private K-12 schools that receive or benefit from federal funds are affected by these guidelines. However, Title IX contains provisions protecting religiously-affiliated schools from being forced to violate their religious tenets in order to comply with Title IX. For example, a seminary linked to a denomination that does not ordain women for ministry arguably cannot be forced to admit and ordain women under Title IX.

How Do These Guidelines Affect Student Safety and Privacy? Gender-identity is self-determined, so there is no way to prove a person who claims to disagree with his or her biological sex is being genuine. If a male student claims he is a female, the school must take his word for it. Under these guidelines, the school also must let him use the girls’ restrooms and similar facilities, if he wants. This gives a male trying to access the girls’ restrooms, locker rooms, and showers an easy way to do so, and it gives the school very few tools with which to stop him.

What Can We Do to Put a Stop to This? Congress must take action. Congress passed Title IX as part of the Education Amendments of 1972. Congress has the power to change Title IX to clarify the meaning of the word “sex” in Title IX. By passing a very simple amendment clarifying that for purposes of Title IX, “sex” means “biological sex,” and not “gender identity,” Congress very easily can stop the Obama Administration from forcing its ridiculous reinterpretation of federal law on public schools all over the country. Additionally, states and schools may take the federal government to court if the government attempts to withhold public funds from schools because they decline to go along with the federal government’s radical reinterpretation of federal law.

Gov. Hutchinson and A.G. Rutledge: Schools Should “Disregard” Obama Admin. “Guidelines”

Last week we wrote about a radical, new set of “guidelines” the Obama Administration’s Department of Education and Department of Justice issued concerning, among other things, gender-identity and public school restrooms.

I want to take a moment to highlight the fact that, among many others, Governor Asa Hutchinson and Attorney General Leslie Rutledge are standing up against the Obama Administration’s radical reinterpretation of federal law.

Governor Hutchinson issued a statement last week, saying,

“The recent letter from the federal government providing guidance to Arkansas schools on gender identification is offensive, intrusive and totally lacking in common sense.  There is no recognizable problem in Arkansas on this issue. The federal government is stirring the pot and meddling in the local control and administration of our schools.

“As Governor, I recommend that local school districts disregard the latest attempt at social engineering by the federal government and continue to use common sense to ensure a safe and healthy environment in Arkansas schools. While the letter implies federal money could be withheld, the letter is nothing more than guidance and is not legally binding.”

Attorney General Leslie Rutledge issued a statement, saying,

“The President is taking his abuse of power to a new level today by forcing a liberal social agenda on school-age children. This radical and outrageous policy drastically expands the federal government’s role in our local schools and raises serious safety concerns for students and parents. Threatening local districts with a loss of funding unless they comply with this non-binding ‘guidance’ is potentially disruptive to the entire education process and lacks all common sense. These bullying and blackmail tactics are unlawful and unconscionable.

“I stand with Governor Hutchinson in urging local districts to disregard this latest attempt from the administration to force a social agenda on the states. I will also work with my colleagues across the country to determine if legal action against this directive is necessary in order to keep our students safe.”

I realize many in Arkansas and across the nation have spoken out against the “guidelines” the federal government issued last week, and I am extremely grateful to them.

I think it is especially important to highlight Gov. Hutchinson’s and A.G. Rutledge’s opposition. As Governor of the State of Arkansas, Gov. Hutchinson is the state’s chief executive, and as Attorney General of the State of Arkansas, A.G. Rutledge is the state’s attorney. Their leadership will be important if the State of Arkansas and the federal Department of Education end up going toe-to-toe over these radical, new “guidelines” from the federal government.

You can learn more about the federal government’s new “guidelines” for public schools here.

Bathrooms, Biology and Federal Overreach

daily_commentary_05_16_16Last Friday we told you about the federal government’s new guidelines affecting bathroom and locker room policies at schools across America–including Arkansas.

Today our friends at the Colson Center for Christian Worldview have put together a solid commentary on the new guidelines and their implications.

John Stonestreet at the Colson Center writes,

Was everyone who lived before 2015 an unenlightened bigot? Recent statements by this administration may give you that impression. . . . .

[O]n Friday . . . Obama administration officials—specifically the assistant secretary of education for civil rights and the head of the Civil Rights Division of the Justice Department—directed schools, including “all public schools and most colleges and universities that receive federal funds,” to—as the Washington Post described it—“provide transgender students with access to suitable facilities—including bathrooms and locker rooms—that match their chosen gender identity.”

Schools that fail to comply with this edict from on high are, the officials announced, in violation of Title IX, the federal sexual anti-discrimination act, and would therefore—you guessed it—risk losing federal funding. Comply or you don’t get the money. It’s ideological extortion, not policy making.

You can read Stonestreet’s entire commentary here–or listen to it below.

[audio:http://www.breakpoint.org/images/content/breakpoint/audio/2016/051616_BP.mp3|titles=Bathrooms, Biology and Federal Overreach by John Stonestreet]