President Barack Obama may use a new courtroom decision to effectively eliminate single-sex bathrooms in K-12 schools around the nation, says groups lobbying to increase the social and legal status of “transgender” people who want to live like people of the opposite sex.
The change is needed, according to transgender groups, because the revolutionary change would comfort the tiny number of kids and youths who wish to change their sex.
But mainstream lawyers hope higher courts will stop a presidential or agency mandate against single-sex bathrooms — and, logically, against single-sex locker rooms. “Such a mandate [would be] totally disrespective of the privacy rights of all the students involved, [and] it would be a clear breach of trust and an unconstitutional expansion of federal powers,” said Brad Dacus, president of the Pacific Justice Institute.
Last week, two judges in the federal appeals court in Virginia declared that a school must allow a girl to use the boys’ bathroom. The two judges said they have to defer to a letter drafted by unelected officials at the Department of Justice. The letter states that prior laws intended to stop discrimination against women or men must now be interpreted as also blocking “discrimination” against youths who want to change their sex, or in this case, against a girl who wants to be a boy.
If the two-judge decision survives review by higher courts, according to the judge who opposed the two-to-one decision, schools “could never meaningfully provide separate restrooms and locker rooms on the basis of sex … [and] privacy concerns would be left unaddressed.” The decision is “illogical and unworkable,” Judge Paul Niemeyer said.
“The dissenting judge explained why the majority was incorrect to give any weight to this [Justice Department] letter,” Steven W. Fitschen, president of the National Legal Foundation, noted in exclusive comments to Breitbart News. “Hopefully, other courts of appeals will agree with the dissent.”
But transgender groups say they can expand the decision nationwide if the Department of Education issues a letter similar to the Justice Department.
“We welcome this sensible and very important decision that promotes fairness and dignity for all students, by holding that a trans student who was denied access to a restroom has a valid Title IX claim” of illegal discrimination,” according to a statement from the National Center for Transgender Equality:
In light of this important ruling, we urge the U.S. Department of Education to swiftly issue guidance to all schools regarding their obligations under Title IX. … While many people are still learning who transgender students are and how to treat transgender students fairly, the court has rightly recognized that treating all students with dignity, including regarding restroom access, is the right thing to do—it costs nothing and harms no one.
The major gay advocacy group, dubbed the Human Rights Campaign, also wants the Virginia decision to go nationwide:
This ruling not only gives appropriate deference to the Department of Education’s interpretation of Title IX as allowing transgender students to use school restrooms consistent with their gender identity. … We therefore expect public schools, including those in North Carolina, to immediately comply, ensuring transgender students full protections under the law, which includes full access to the appropriate facilities.
Also, if progressives bar single-sex bathrooms, they’ll quickly bar single-sex locker rooms, admits Ruth Marcus, a progressive columnist writing in The Washington Post.
Last year [in 2015], the department intervened on behalf of a transgender Illinois girl [who is biologically a boy] who said she wanted equal access to the girls’ locker room, and not to be relegated to a separate facility. She wanted — as a mom, my heart goes out to her — “to be a girl like every other girl.”
The school district said it worried that allowing her [the boy] into the locker rooms “would expose female students to being observed in a state of undress by a biologically male individual.” The case ended up being settled [ the school surrendered to the federal government] with agreement involving privacy curtains and accommodations for any girls who wanted additional privacy protections. … Even for people of goodwill, the emergence of transgender rights is going to take some adjusting.
But these huge and intrusive changes would be made for the benefit of a tiny slice of the population. A recent study of the 2010 census showed that only 89,667 adults had changed their names from one sex to another. That’s roughly 1 in 2,400 adults. Advocates of greater status for people who live like people of the opposite sex, however, say one in every 400 American adults are transgender.
Unsurprisingly, a new poll shows public opinion is shifting rapidly in favor of preserving single-sex bathrooms and locker rooms.
Any effort to use Title IX anti-discrimination rules to force transgenderism on America’s schools is simply illegitimate, Dacus told Breitbart News. “There is absolutely nothing in the way of case law or statutory language that would legitimize such a mandate upon public schools,” Dacus said.
Dacus also believes that if the U.S. Supreme Court were to hear such a case, it would most likely find it impossible to uphold the Appeals Court’s interpretation of Title IX. “If Title IX were to be used to force all schools to issue pro-transgender bathroom rules,” Dacus told Breitbart, “it would be a major setback for local control by school districts, as well as a major breach of trust for parents throughout the country who value the privacy protection of their sons and daughters in the locker rooms and showers at public schools.”
Fitschen, president of the National Legal Foundation, told Breitbart News that even in its decision, the Appeals for the Fourth Circuit admitted that Title IX does not directly address transgenderism. Because of this, Fitschen points out, “the majority had to rely on a letter of interpretation of the regulation that does address transgenderism.”
Fitschen said bowing to the desires of a few students is not sensible since in many cases these teens and pre-teens are not allowed by law to fully undergo sex reassignment surgery. “It is important to note that the court reached this decision despite the school’s having already constructed single-stall unisex restrooms for G.G. or any other student to use,” Fitschen said:
Furthermore, the court explicitly noted that because the World Professional Association for Transgender Health (WPATH)’s Standards of Care do not permit sex reassignment surgery for minors, G.G. is still biologically female. WPATH understands that transgender minors should not be allowed to make certain decisions regarding their desires. Yet, the court has ordered that G.G. be placed at risk of sexual assault simply because G.G. desires to use the boys’ bathroom.
Speaking for the National Legal Foundation, Fitschen had other concerns about these rules:
It is hard to understand how anyone can be against a law that protects women and girls from embarrassment and discomfort, not to mention the realist threats of voyeurism and sexual assault; but we must try to understand. Part of the reaction is a knee-jerk one from the community that has expanded from LGB to LGBTQIAPK that anything that “targets” one of their constituencies must be opposed by all of their constituencies. This view is wrong, of course. These laws are not anti-transgender laws; they are pro-safety laws. And that is true despite the historic genesis of laws such as the one in North Carolina. But at least this reaction can be understood. It’s driven by selfishness: forget the fact that without such laws, local governments can give free reign to transsexuals who have not undergone sex-reassignment surgery, transvestites, and predators in drag to be in women’s bathrooms. All that matters is that the transgendered members of the LGBTQIAPK community can use whichever bathroom they want. It’s hard to imagine that a bathroom law could or would ever be enforced against someone who has undergone sex reassignment surgery; but under that pretext, all women and children subject to local laws such as the Charlotte, NC, law must be left at risk.
The greater mystery is why so many individuals and businesses outside the LGBTQIAPK community have jumped on the bandwagon. But again, we can understand. First, the LGBTQIAPK community understood that it would gain the sympathy of the political Left and of many Americans if it could convince us that the greatest societal good—if not god—is tolerance. Certainly tolerance is a virtue when exercised appropriately. But it is also a tool of destruction when it is invoked against the exercise of all moral judgment. Once a sufficient segment of the population was sold on the false definition of tolerance, the next step was to play the bigot card. A simple plan, but one that has worked so well. Now it can take real courage to stand for common sense beliefs and laws. Second, the American business community has been targeted for conversion for decades by organizations like the Human Rights Campaign (HRC). HRC puts out an annual Corporate Equality Index with special emphasis on Fortune 500 companies and transgender issues. Further, HRC has staff members dedicated to going into corporations to train human resource personnel on LGBT (at least) issues. Corporations, like people, don’t want to be labeled “bigot.” Especially with the threat of boycotts. Corporations do want to be “pro-tolerance” and will go to great lengths to demonstrate what good, tolerant corporate citizens they are.
So, we can understand the reactions. And that understanding shows just how wrong-headed they are.
Still, if federal courts were to begin using Title IX rules to force schools to bend to the LGBT lobby, we could only be a few short years away from another federal power-grab. It could use the new legal powers granted by progressive judges to force America’s schools to eliminate single-sex bathrooms and to open all bathrooms and locker rooms to both sexes, regardless of what the states, local school boards, and parents want and all for the sake of perhaps only a few hundred students across the country.
That policy would allow a few transgender kids to decide whether they want to share bathrooms and locker rooms with kids of their own sex or with kids of the sex they want to become. But it would also deny every other American kid and youth any right to privacy in their own school bathrooms and locker rooms.
Follow Warner Todd Huston on Twitter @warnerthuston or email the author at firstname.lastname@example.org.