By MIKE MANNO
The Obama administration on May 13, 2016 set off a time-bomb. The Office of Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice sent letters to school administrators across the country informing them that they might be in violation of the law, and thus put their federal funding in jeopardy, if they did not allow students to use the locker and restroom facilities consistent with their “gender identity.”
The letters, of course, contained the usual amount of liberal pabulum: Students need not supply any medical or psychological necessity to use the opposite-sex restroom — just tell the teacher — and needless to say, to respect the “privacy” of the student, parents need not (read that “could not”) be informed.
Title IX — the law referred to in the letter — prohibits discrimination in education on the basis of sex. The time-bomb exploded almost immediately. And so did the legal wrangling.
Did “sex” include gender transitioning or simple birth gender? How far could appointed bureaucrats go in stretching the definition of “sex”? And, but not least, did the letter amount to a legal regulation or just an advisory opinion?
We soon found out. In Gloucester, Va., a transgender student, Gavin Grimm, relying on the administration’s letters, sued his school board to be allowed to use the restrooms and lockers of his choice.
The case was dismissed in the district court, but a panel of the Fourth Circuit Court of Appeals in Richmond reversed and ruled that the school’s policy of not allowing transgender students to use their restroom of choice violated Title IX and the “regulation” contained in the Department of Education’s May 13 letter.
The school appealed and on August 16, 2016 the Supreme Court stayed the appeals court’s decision pending a review. Then a funny thing happened: Donald Trump was elected president (who’d have thought?) and less than a month after his inauguration, he rescinded the Obama regulation-letter.
The Supreme Court responded in March by vacating the judgment of the appeals court and sent the case back (remand) to the Fourth Circuit for further consideration in light of the government’s new position.
Now, a new case may be headed to the top court, one which was decided by the Seventh Circuit Court of Appeals and was decided May 30, after the Gloucester case was remanded and the Obama rules rescinded. It involves an unwritten bathroom policy by the Kenosha (Wisconsin) School District prohibiting students from using facilities that do not conform to their biological gender.
A 17-year-old transgender student, Ashton Whitaker, brought the legal action, alleging that the district policy violated Title IX as well as the Equal Protection Clause of the Fourteenth Amendment. In the action (he is a biological female transitioning to male) Ash (as referred to by the court) also asked for a preliminary injunction against the district to allow him (I’ll use that pronoun) to continue to use the male restrooms during his senior year.
The federal district court granted the preliminary injunction, it was upheld by the court of appeals and now has been appealed to the U.S. Supreme Court, although at the time of this writing the Supreme Court has not accepted the case.
This case, like the one from Gloucester, presents some novel legal issues that find no precise precedent in legal annals. What, for example, is gender? Is it what we are born with or something we choose? Is it possible to change gender, and if so, how do we legally recognize that change?
To this we often get troubling verbiage from politicians, interests groups, and the courts. For example, in the case from Kenosha the court goes into a lengthy discussion about these issues with this troubling statement:
“[I]t is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.”
So, are sex and gender something we are born with, or something we choose?
The problem with this is that the whole issue of gender identity has become a political issue; lost in the smoke is the fact that there is a real condition known as gender dysphoria, a condition recognized by the American Psychiatric Association.
Remember, the first “letter” from the Obama administration required no proof that a student had real gender identity issues; it left that determination to the student and cut out the parents. It turned gender dysphoria from a psychological/medical issue to whatever a confused, impressionable young person thinks it is. It’s now become a sop to the activists in the LGBT crowd who are more than happy to champion any form of sexual perversion.
And the ripples from this are beginning to permeate the rest of society. Political campaigns and boycotts are launched around the issue of transgender bathrooms and school locker rooms.
And it goes beyond that. Recently it was reported that an Alberta school facilitated a gender transition for an 11-year-old girl without telling her parents. According to LifeSiteNews, the parents only found out a year later when the girl had become suicidal after trying to live a double life as a boy at school and a girl at home.
And, of course, there was the California kindergarten that put on a show of turning a five-year-old boy to a girl. After parents complained that they received no warning about the “transition party,” the school responded that because gender identity isn’t sex education, it’s not subject to California’s parental notification laws.
So I think the issue is fairly put: What are our schools doing? Some are promoting the transgender agenda, some are obviously not. And the case of Ash Whitaker is probably not a good vehicle to decide the issue.
The reason why Ash’s case is probably not a good one to create a legal precedent is that Ash seems truly to be suffering from gender dysphoria and has been diagnosed as such; and he also suffers from other maladies that the interruption of restroom facilities aggravates. So, assuming Ash’s condition is true and he is not just a voyeur — as some boys crashing girls’ locker rooms have been — how do we as a society handle people afflicted with gender identity issues? And how should that play out in schools?
Lawyers have a saying: “Hard cases make bad law.” Thus, the first thing that should happen is the Supreme Court should pass on the Ash’s case. He has already graduated from school, and the case can be deemed moot.
This is an issue where some common sense needs to be exercised. First, schools must learn that they do not “own” the children enrolled in their institutions. Too often schools act without informing or notifying parents. Children belong to families and their families have every right to enter into the discussion.
Second, not every boy who says he wants to be a princess suffers from gender dysphoria. Some are just confused by the sex roles they see around them — encouraged as they are by the media — and tend to grow out of those thoughts just like many tomboys grown up to be homecoming queens. So don’t panic; some of this is normal development.
Third, good counseling and therapy are needed when there is true gender confusion. Good counseling, that is — not the type that prohibits the therapist from truly exploring the depths of the problem by requiring them to reinforce the child’s confused sexual urgings.
But even broader than that, society needs to return to a healthy focus on traditional gender roles and stop equating normal masculine and famine traits with sexual repression and inequality. Otherwise, if we continue to take these cases into the courts we’ll soon find the hard case that will make bad, very bad, law.
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