The fate of the Obama Administration’s open bathroom mandate for private facilities in public schools will soon be decided by the new Trump Administration, the U.S. Supreme Court, or both. President-elect Donald Trump will be appointing new cabinet members to lead relevant federal agencies, and the Supreme Court will be hearing a legal challenge to the bathroom mandate out of Virginia.
Back in May of this year, two federal departments issued a joint edict that public schools must permit any student to access the restrooms, locker rooms, and shower facilities of the opposite sex, or risk the loss of federal education funding. The mandate was released in a highly-publicized joint statement by the Civil Rights Division of the U.S. Justice Department and the Office of Civil Rights of the U.S. Department of Education.
U.S. Attorney General Loretta Lynch decreed that students must be allowed to use private facilities that “align” with their self-professed “gender identity.” Lynch ordained that school district officials cannot adopt “broad generalizations” or “stereotypes” concerning a student’s “actual gender”, or create a “hostile environment” for gender-defiant students.
The result of the edict is that any boy has free license at any time to invade the privacy of high school, middle school, and elementary school girls while they are using the bathroom, changing clothes, or taking a shower. The scope of the mandate is not confined to students who have proclaimed in some form or fashion that they are assuming a new “gender identity.”
In familiar lawless fashion, Attorney General Lynch claimed that Title IX of the federal Education Amendments of 1972 forbid discrimination based on “gender identity.” The fact is that Title IX says nothing of the kind. In fact, the law and regulations of Title IX specifically authorize schools to provide “separate toilet, locker room, and shower facilities” on the basis of a person’s biological sex.
President-elect Donald Trump has already announced his choices to head the two respective departments that issued the open bathroom edict. Trump has chosen Alabama U.S. Senator Jeff Sessions to serve as Attorney General, and Michigan education leader Betsy DeVos to serve as Education Secretary. Neither is expected to be a supporter of a federal mandate that eliminates bathroom privacy for young girls in the public school setting.
Sessions and DeVos will have the early opportunity to nix the open bathroom edict, since the action was based on no legal requirement or authority, or any federal rule-making activity. Should they do so, jurisdiction over bathroom and private facility policies would return to local school districts and local school boards, where such decisions belong.
In the meantime, the U.S. Supreme Court has agreed to hear an appeal of a 4th Circuit U.S. Appeals Court decision involving the Gloucester County School District in Virginia. A 4th Circuit panel ruled that the school district’s policy separating restrooms according to biological sex violated Title IX, a ruling that as explained above is in clear contradiction to federal law.
The 4th Circuit judges ordered school officials to allow a 17-year-old girl who imagines herself to be a boy to use the private facilities on campus used by boys. The student claims she is not able to “focus on college plans and prom and graduation” because she is not allowed to use the boy’s bathroom. Predictably, the lawsuit was brought by the ACLU of Virginia.
Gary McCaleb, senior counsel for the Alliance Defending Freedom, says the High Court should curb the lower court’s defiance of federal law. “Schools have a duty to protect the privacy and safety of all students. Students have a right to bodily privacy, and federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities.”
At the same time, a federal judge in Texas has reaffirmed his action temporarily blocking enforcement of the open bathroom edict. In August, U.S. District Judge Reed O’Connor issued a preliminary injunction halting enforcement of the bathroom mandate until the case is formally argued in federal court.
Judge O’Connor is hearing a lawsuit filed by the State of Texas and 13 other states challenging the legality of the Obama Administration bathroom policy. O’Connor enjoined enforcement of the mandate on a nationwide basis. (Last week, a federal judge in Nebraska put on hold further action on a lawsuit filed by ten other states against the bathroom edict until the U.S. Supreme Court rules on the 4th Circuit case.)
Judge O’Connor recently rejected a request by the U.S. Justice Department to issue a stay of his nationwide injunction until the merits of the case are heard, which would have left the bathroom mandate in effect. In his latest order, Judge O’Connor said that Title IX “relies on the consistent, uniform application of national standards in education and workplace policy.”