In 2016, under the Obama Administration, the United States Department of Education (DOEd) and Department of Justice issued guidance instructing public schools to open all restrooms, locker rooms, sleeping quarters, and probably sports teams to students of both sexes. Although the Trump administration has rescinded that guidance, it’s difficult to discern exactly what policy the current DOEd will pursue concerning students who suffer from gender dysphoria.
On the one hand, along with rescinding the Obama guidance, the Office for Civil Rights (OCR) in Trump’s DOEd has closed two investigations into complaints based on schools’ maintaining sex-segregated private facilities. In addition, Education Secretary Betsy DeVos has declared her intention to return OCR “to its role as a neutral, impartial, investigative agency.” These are encouraging signs.
But on the other hand, Acting Assistant Secretary for Civil Rights Candice Jackson issued a letter to OCR regional directors that suggests that the overreach of the Obama years may linger under Trump. While this letter was intended to resolve questions about how OCR will handle complaints filed by transgender students, observers on both sides of the issue are confused about its actual meaning.
This confusion is harmful to constitutional governance, to the safe and efficient operation of public schools, to parental rights, and ultimately to students who identify as transgender themselves.
Interpreting Title IX
Title IX of the Education Amendments of 1972 prohibits discrimination in federally funded education programs “on the basis of sex.” That phrase is the nub of the legal dispute about claims based not on sex but on confusion about sex.
The wording says nothing about gender identity, and no serious person argues that Congress intended any such reading when the amendment was passed in 1972. Nevertheless, some activist judges have been willing to extend Title IX’s protections to complaints based on gender identity rather than sex. Others have not. A federal court in Texas blocked implementation of Obama’s guidance. And after that guidance was withdrawn by the Trump administration, the Supreme Court vacated a case in which a female student in Virginia sought to use the boys’ restroom at school.
This is the confusing legal context for Jackson’s recent letter. The letter states that students who identify as transgender may still file civil-rights complaints, which OCR will evaluate in reliance on “Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect.” That could mean that as the law “evolves” (translation: is rewritten by judges despite Congress’s refusal to do so), OCR’s handling of transgender complaints may change as well. The letter also emphasizes that district offices should “approach each of these cases with great care and individualized attention before reaching a dismissal conclusion.” What this admonition adds to OCR’s usual procedure isn’t clear. Is it simply a political ploy to deflect attacks by the LGBT lobby?
The letter also lists several types of allegations over which OCR may assert jurisdiction. These include failure to assess whether a hostile environment is created by
sexual harassment (i.e., unwelcome conduct of a sexual nature) or gender-based harassment (i.e., based on sex stereotyping, such as acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes) . . .
Other potential allegations include retaliating against a student who identifies as transgender for raising a complaint, and treating students differently based on their “failure to conform to stereotyped notions of masculinity or femininity.”
Feelings, Not Law
Too many of the letter’s provisions appear to be based on feelings, not law. Obviously, any discriminatory conduct directed toward a student who identifies as transgender because of his or her biological sex falls within the prohibitions of Title IX, as it would if directed at any other student. But when OCR targets actions supposedly motivated by “gender identity” rather than “sex,” it has gone beyond the statute and embarked on penalizing schools for nebulous offenses based on undefined criteria. What, exactly, is “sex stereotyping” in this context? Where are OCR’s regulations defining it? How does a school predict what will be considered unlawful stereotyping and what won’t?
Some observers on the left are outraged about the letter’s omission of restroom and locker room access, except to mention it as perhaps not justifying assertion of jurisdiction. But the regulations under Title IX specifically allow protection of privacy and decency with “separate toilet, locker room, and shower facilities on the basis of sex” as long as the facilities provided are comparable for each sex. The federal court in Texas concluded that this phrase unambiguously refers to biological sex. But then, so does the same phrase in the statute itself. So why does OCR seem willing to adopt the clear meaning of “sex” in the regulation but not in the statute?
This tangle is created by refusing to apply Title IX as it was written and as Congress obviously intended it to be applied.
The impression is left by the new letter that bureaucrats are attempting to apply Title IX just strictly enough to satisfy conservatives, without appearing to be mean. This approach is reminiscent of the late Justice Scalia’s crack that a “moderate” interpretation of the Constitution is one “halfway between what it really means and what you’d like it to mean.” Finding this halfway point requires arbitrariness.
As an example, consider the OCR letter’s mention of pronoun use as a possible civil-rights violation. “[R]efusing to use a transgender student’s preferred name or pronouns,” OCR warns, “when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes,” may violate Title IX. But the statute and its implementing regulations say nothing about pronouns, so this possible violation seems to have been created from whole cloth.
If the sentence means, as has been suggested, that the potential civil-rights violation would be a school’s failure to adhere to a pronoun policy if it has one, that would be an equally arbitrary application of a statute that simply doesn’t apply. And how to determine whether a person’s insistence on using correct pronouns is “motivated by animus”? To a leftist, every disagreement is motivated by animus on the part of the person who takes the conservative position.
Beyond arbitrariness, the suggestion that using the “wrong” pronoun could constitute a civil-rights violation should be rejected as utterly and dangerously bogus. The First Amendment generally protects American citizens, even within the walls of a public school, from being compelled to say anything—much less something that manifestly is not true.
What About Parental Rights?
At the heart of American liberty is parents’ right and freedom to form the worldview of their children. Insistence on adherence to a new sexual orthodoxy undermines that right. It trains children to disregard anything that conflicts with the new orthodoxy, whether it comes from parents, from religion, or even from science.
And what about the parents of children who are perhaps the most victimized by this new regime—the students who consider themselves transgender? Faced with the nebulous “guidance” in the new letter, risk-averse school administrators will be intimidated into accommodating every child’s confusion. While there are certainly parents who are willing and even eager to play along with the fantasy, many parents are horrified at the thought that their daughter would be treated as a boy or their son as a girl.
No bureaucrat has the right to substitute his or her own judgment for that of parents—especially in such a delicate and hotly debated area as gender identity. Nor can it be seriously argued that the judgment of parents who observe the authority of biology must be overturned because these parents are harming their confused children. The guidance letter’s failure even to mention parental rights is deeply troubling.
Normalizing Gender Dysphoria Hurts Children
Dr. Paul McHugh, former chief of psychiatry at Johns Hopkins Hospital, has risked his reputation in the increasingly politicized world of psychiatry by openly decrying the normalization of gender dysphoria in children. As McHugh has explained here at Public Discourse, gender dysphoria is a psychosocial disorder that, in the vast majority of cases, will resolve itself as children reach maturity. But that’s less likely to happen, he warns, if children receive encouragement in their confusion rather than proper treatment. Schools that facilitate the confusion can only contribute to long-term harm to the affected children.
The American College of Pediatricians (ACP)—a small, traditionalist alternative to the American Academy of Pediatrics—is blunt about its opposition to enabling the transgender fantasy: “Conditioning children into believing a lifetime of chemical and surgical impersonation of the opposite sex is normal and healthful is child abuse.”
ACP president Dr. Michelle Cretella warns, as do McHugh and several colleagues, that the medical interventions increasingly undertaken to help dysphoric children “transition” to the opposite sex are either physically harmful or untested for long-term effects. Puberty-blockers and extended use of cross-sex hormones are dangerous to children whose bodies, brains, and psyches are still developing.
Both McHugh and Cretella observe that the studies we do have available show that physical treatments for gender dysphoria don’t seem to solve the underlying psychological problems. Cretella reports, “Adults who undergo sex reassignment—even in Sweden, which is among the most LGBT-affirming countries—have a suicide rate nearly 20 times greater than that of the general population.” And as for the charge by LGBT activists that failing to facilitate gender dysphoria will lead to more suicides of children and youth, Cretella responds:
Over 90 percent of people who commit suicide have a diagnosed mental disorder, and there is no evidence that gender-dysphoric children who commit suicide are any different. Many gender-dysphoric children simply need therapy to get to the root of their depression, which very well may be the same problem triggering the gender dysphoria.
Despite the medical evidence, opportunities for genuine treatment are receding before the tide of politically correct maltreatment. The World Professional Association for Transgender Health claims that the radical transitioning procedures are “safe.” “Two leading pediatric associations—the American Academy of Pediatrics and the Pediatric Endocrine Society,” Cretella writes, “have followed in lockstep, endorsing the transition-affirmation approach even as the latter organization concedes within its own guidelines that the transition-affirming protocol is based on low evidence.”
With this institutional wind in their sails, pediatric “gender clinics” are mushrooming, and 215 pediatric residency programs are training medical students in transition-affirming protocols. So as reality-grounded pediatricians retire, they’ll be replaced by new physicians who have been indoctrinated to believe what they’ve been taught rather than what research and common sense tell them.
McHugh reports that psychiatry is complicit with pediatrics in failing to help these children:
The grim fact is that most of these youngsters do not find therapists willing to assess and guide them in ways that permit them to work out their conflicts and correct their assumptions. Rather, they and their families find only “gender counselors” who encourage them in their sexual misassumptions.
Seven states have already banned “conversion” therapy that might help dysphoric children, and others may soon follow suit. Senator Patty Murray (D-WA) has introduced a similar bill proposing nationwide legislation.
Until policymakers and the public realize the factual and moral bankruptcy of transgender ideology, pressure will continue to mount to normalize the tragically abnormal. Children who identify as transgender are being used as pawns in a political game. Our schools must resist being drawn into complicity with this travesty, but it’s not clear that the Trump administration understands this. Let us hope that DOEd and OCR will do the right thing for schools, parents, and children.
Jane Robbins and Emmett McGroarty are senior fellows with the American Principles Project in Washington, DC.