The Trump Administration announced last week that they are rescinding former President Obama’s open bathroom mandate for public schools. In a joint letter from the U.S. Departments of Justice and Education, administration officials stated that the Obama open bathroom edict was not consistent with federal law.
In April of 2014, the Office of Civil Rights in President Obama’s Department of Education issued “guidelines” instructing schools receiving federal funding to allow students to use the bathrooms, locker rooms, and shower facilities of the opposite sex. The guidelines stated that failure by local public schools to do so would be regarded as sex discrimination under Title IX, and could jeopardize future federal funding grants.
Title IX was adopted by Congress in 1972 in large part to ensure that women were not excluded from educational programs and activities in federally subsidized schools and universities. A Title IX regulation formally adopted in 1975 stipulated unequivocally that schools may provide “separate toilet, locker rooms, and shower facilities on the basis of sex.”
In May of 2016, the Obama Administration issued a joint “guidance” from the Civil Rights Division of the Justice Department and the Office for Civil Rights of the Department of Education. The letter falsely stated that Title IX prohibits discrimination based on “gender identity,” and that students must be allowed to use private facilities that “align” with their self-professed “gender identity.”
While then-Attorney General Loretta Lynch claimed that the joint “guidance” was merely “advisory,” she also made clear that school districts who failed to comply would face litigation from the Department of Justice, and possible loss of federal funding from the Department of Education. The practical result of the edict was that any boy would have free license at any time to invade the privacy of high school, middle, and elementary school girls while they are using the bathroom, changing clothes, or taking a shower.
In the latest development, the Trump Administration’s Acting Assistant Education Secretary for Civil Rights and Acting Assistant Attorney General for Civil Rights have jointly declared that the 2016 Obama Administration bathroom edict is being withdrawn. Their mutual correspondence states that the Obama Administration provided no legal explanation as to how the bathroom mandate was consistent with “the express language of Title IX,” and had failed to undergo any formal rulemaking process.
The latest letter further states that there should be “due regard for the primary role of the States and local school districts in establishing educational policy.” This approach is in keeping with the stand taken by President Donald Trump during his campaign, in which he stated that school bathroom policies should be decided by state governments and local school boards.
The Obama Administration’s attack on student bathroom privacy was already on life support. A total of 23 states had filed two separate lawsuits challenging the legality of the open bathroom mandate. As a result of one of those lawsuits, U.S. District Judge Reed O’Connor of Texas has issued a nationwide preliminary injunction blocking enforcement of the mandate.
In his temporary restraining order, Judge O’Connor noted that “it cannot be disputed that the plain meaning of the term ‘sex’ as it was enacted by the Department of Education following the passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.” The Obama Administration had attempted to appeal O’Connor’s injunction to the Fifth Circuit Court of Appeals, but the Trump Administration has now withdrawn that appeal.
The U.S. Supreme Court is expected to render an ultimate verdict on the issue of student bathroom privacy and safety in the near future. The High Court has agreed to hear a case out of Virginia, which is expected to be on its docket during its fall term. The case involves a female student in the Gloucester County School District who demanded the right to use the boys’ restroom facilities.
The Fourth Circuit Court of Appeals ordered the school district to grant the girl access to the private facilities of male students. The Fourth Circuit panel ruled that the Obama Administration had authority to interpret its own rules with regard to Title IX policy, even though that interpretation was in conflict with regulations on the books. The U.S. Supreme Court has issued a stay of that ruling until the justices can hear and decide the case themselves.
At least for now, school superintendents and administrators have the right and obligation to protect young girls from male intruders while they are undressing, changing clothes, taking showers, and using the restroom. Tony Perkins, President of the Family Research Council, says the Trump Administration’s reversal of the open bathroom mandate “is a victory for parents, their children, and their privacy.”
“The Obama Administration resorted to this coercive policy because they knew parents and schools could never be persuaded to force boys and girls to shower together, stay together on school trips, and use the same locker rooms and bathrooms. As it turned out, the persistence of parents was far stronger than the government’s power of coercion. Parents refused to allow their child’s innocence to be sacrificed on the altar of government imposed political correctness.”
A group called Students and Parents for Privacy cheered the recission of the open bathroom edict. The group includes 51 families in the Palatine, Illinois School District who filed their own lawsuit against the bathroom mandate and the school district. Dan Harrington, one of the parents, said they felt the need to stand up for every child in every school.
“As a parent, I expect the school my daughter attends to protect her privacy, dignity, and well-being. Our school district abandoned that duty. We are grateful that the President has taken the first step in restoring sanity to our schools. There are common-sense solutions that would protect the rights and dignity of all students. Allowing young men into the restrooms and locker rooms of our daughters is not one of them.”
Harrington’s group represents overwhelming public opinion on this issue. A survey conducted last summer by WPA Opinion Research found that 66% of those polled oppose the government forcing organizations to open bathrooms to people of the opposite gender. Only 28% approved. Strong opposition to open bathrooms was expressed by individuals from each gender and every generation.