Yesterday, the Department of Justice and the Department of Education issued a notice withdrawing the statements of policy and guidance issued last year by the Obama administration that affected public schools.
In May 2016, the Obama administration sent a letter to all public schools in America notifying teachers and administrators of a new regulation for treating “gender identity.” The letter stated that, to comply with federal law, policies concerning students would be based on their “gender identity” and not on their biological sex.
The Trump administration disagreed that “sex” and “gender identity” should be interpreted as synonymous, and believed that the issue should be handled by states and local school districts.
Although the regulation has been rescinded, it’s important to understand how radically the directive would have changed public education in America. Here are some points you should know about the issue:
By what authority did the Obama administration issue the directive?
Although Congress is responsible for creating laws, they have ceded much of their authority to define what laws mean to the other two branches of government.
We often think the judiciary is the branch of government responsible for interpreting the law, but in reality the executive branch, whose departments act as regulatory agencies, generally determines how a statutes will be interpreted. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place.
This specific letter was a “significant guidance” document, a policy instrument that provides “initial interpretations of statutory and regulatory requirements and changes in interpretation or policy.” These type of directives are often used to “Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles…”
Why was the policy changed implemented by both the Education Department and the Justice Department?
The policy change had to be accepted by both departments since the letter issued by the Obama administration provided guidance on how both the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) would “evaluate a school’s compliance” with interpretation of laws regarding transgender students.
What law was changed or interpreted by the Obama administration letter?
The letter provided guidance on the Obama administration’s interpretation of Title IX of the Education Amendments of 1972, a law that prohibits discrimination on the basis of sex in education programs receiving Federal financial assistance. The administration had reinterpreted Title IX to make “gender identity” synonymous with “sex.”
The key sentence in the letter stated, “The Departments [ED and DOJ] treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” In other words, if a biologically male or biologically female student “identified” as the opposite sex, then for almost all purposes public schools and colleges were required to treat them as such.
What were the penalties for refusing to follow this directive?
Because of pending lawsuits, the Obama administration was unable to fully implement the change. But school districts who did not comply would have been considered to be in violation of Title IX, and could have lost Federal funds for their school(s).
What exactly does “transgender” mean?
The letter states that, “Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth.”
More broadly, transgenderism is an umbrella term for the state or condition of identifying or expressing a gender identity that does not match a person's physical/genetic sex. A person can be transgender and “identify” as male, female, “third sex,” “genderfluid” (flexible about their gender identity and fluctuating between genders), “genderqueer” (not exclusively masculine or feminine), or dozens of variations.
Transgender is independent of sexual orientation, and those who self-identify as transgender may consider themselves to be heterosexual, homosexual, bisexual, pansexual, polysexual, or asexual.
What is “gender identity”?
As the letter defined the term, “Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.”
The LGBTQ community and their allies consider gender to be a trait that exists along a continuum and is not inherently rooted in biology or physical expressions.
How would a student prove they are transgender?
They didn’t have to prove anything; all that was required was for the student or student’s parent to notify the school of the child’s chosen gender identity. As the letter states, “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”
But couldn’t a “genderqueer” or “genderfluid” student claim to be both male and female at the same time?
Yes. If a child claimed to be both male and female they would have been allowed to use either male or female facilities or switch back and for the whenever they choose.
What if students or parents objected to sharing a locker room with someone of the opposite biological sex?
The letter makes it clear such concerns did not matter, and that schools would be required to provide “equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” Under the Obama administration, choosing one’s gender identity was considered a protected civil right. As the letter noted, that means, “ As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
Would schools have been required to call male students “she” and female students “he”?
Yes. School staff and contractors would have been required to use pronouns and names consistent with a transgender student’s chosen gender identity.
How did the Obama administration directive affect restrooms and locker rooms?
Schools would have been forced to allow students to use the facilities that align with their gender identity. They would not be able to require children to use facilities based on their biological sex or use individual-user facilities when other students are not required to do so.
How did the Obama administration directive affect athletics?
The regulation was surprisingly vague on this point. In general, if a biologically male transgender student wanted to play the girl’s team they must be allowed to do so. However, the letter also claims, “Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”
How would the Obama administration directive have affected single-sex classes?
When offering single-sex classes and activities, a school would have been required to allow transgender students to participate consistent with their gender identity.
How would the Obama administration directive affect single-sex schools?
Title IX does not apply to the admissions policies of certain educational institutions, including non-vocational elementary and secondary schools, and private undergraduate colleges. Those schools are therefore permitted under Title IX to set their own sex-based admissions policies.
How would the Obama administration directive affect fraternities and sororities?
Title IX does not apply to the membership practices of social fraternities and sororities. Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members.
How would the Obama administration directive have affected housing and overnight accommodations?
Schools must allow students to stay in accommodations that align with their gender identity. For example, if on an overnight field trip, a biologically male transgender student could sleep in the same room with female students.
What if a biological male wanted to wear a dress to prom?
According to the letter, a school “may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).”
Does the change allow schools to discriminate against transgender students?
No. According to the new directive, the withdrawal of the Obama administration letter “does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.”