Posted on February
28, 2017
Ruled Out
Obama bathroom edict had no basis in
law
By
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 President Trump has now rescinded this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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