Posted on February 28, 2017



Ruled Out

Obama bathroom edict had no basis in law


Daniel Clark



Last year, President Obama declared it to be a violation of the Title IX Amendments to the Civil Rights Act to require a student to use the bathrooms, locker rooms and showers that correspond with his or her own sex.  On this basis, he threatened to withdraw federal funding from those schools that he considered to be violators.  President Trump has now rescinded this rule.  Predictably, it is Trump’s decision, and not Obama’s, that is depicted as the controversial one.

You read that right.  Obama threatened school funding cuts, but it’s his successor who is behaving scandalously  Can you just imagine if the Republican president were the one talking about defunding schools?  Heck, in the mid-90s, the media accused the GOP of “starving children,” even though they were increasing funding for school lunches, just because they were ceding control of the program to the states rather than micromanaging everything from Washington.

Virtually no attention has been paid by the media to the question of which president is correct where the law is concerned, for the simple reason that they already know their side is in the wrong.  Obama’s edict was a brazen and impudent lie.  In fact, if it weren’t, there’d have been no need for it.  If Title IX really said what Obama claims it does, then schools would be obliged to comply even without his order to do so, and regardless of Trump’s revocation of that order.

The Obama rule, in the form of a joint “dear colleague” letter from the Departments of Justice and Education, practically came right out and announced that it was interpreting something into the law that plainly isn’t there.  “Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status.  The guidance makes clear that both federal agencies treat a student’s gender identity as the student’s sex for the purposes of enforcing Title IX.”

By “the guidance,” the statement is referring to itself.  So what the Obama administration was announcing was that it was changing the legal definition of the word “sex” to mean something it cannot possibly have meant when the law at issue had been written.  In reality, “transgender status” and “sex” are nowhere near synonymous.  One’s sex is objectively, biologically determined, whereas “transgender status” is not only subjectively defined, but it factually doesn’t even exist, insofar as no person can actually be changed from a man to a woman, or vice versa.  Caitlin, nee Bruce Jenner may have a “transgender status” of female, in the eyes of whomever determines such things, but his sex is, and always will be, male.  So what chance is there that when Congress passed Title IX, in order to prohibit certain forms of discrimination “on the basis of sex,” it meant for that to encompass “transgender status” too?  Absolutely none.

Furthermore, Title IX does not forbid all discrimination on the basis of sex, many examples of which are actually quite sensible.  Title IX says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Our schools may not exactly be the envy of the world, but neither are they so bad that they would count going to the bathroom as an education activity.  Discrimination between the sexes where such matters are concerned is only reasonable, and absolutely not prohibited by Title IX.  If it were, the Obama order would again be unnecessary, because every student would already be free to use whichever bathroom he or she wanted.

Title IX has got nothing in the world to do with school bathrooms.  Having been written 45 years ago, it also could not have given any consideration to the 21st Century conceit of transgenderism.  No intelligent person – let alone President Obama, a former editor of the Harvard Law Review – can possibly believe the bureaucratic “guidance” put forth in the letter.  For Trump to vacate the order, then, is indisputably the correct thing to do.

Yet it is being universally condemned, at least in the insular universe of the liberal media.  If the truth still mattered, the headlines after Trump’s decision would have read something like, “Baseless Obama order repealed.”  Instead, most of them were variations of “Trump rolls back protections for transgenders.”

Just in case you were wondering what Trump is complaining about when he refers to “fake news.”



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