fbpx
Articles

Explainer: Trump administration rescinds public school transgender policy

/
February 23, 2017

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Although the regulation has been rescinded, it’s important to understand how radically the directive would have changed public education in America.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.”

See also: ERLC’s Russell Moore Supports Trump Administration’s Decision to Rescind Obama Transgender Mandate

Joe Carter

Joe Carter is the author of The Life and Faith Field Guide for Parents, the editor of the NIV Lifehacks Bible, and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator. He also serves as an executive pastor at the McLean Bible Church Arlington location in Arlington, Virginia. Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24