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Transgender debate continues over Obama directive

WASHINGTON — Legal, policy and responses are continuing regarding the transgender controversy that reached an apparent peak with the Obama administration’s directive to public schools.

Officials with the Departments of Education and Justice directed public school districts, as well as colleges and universities, May 13 to permit transgender students to use the restrooms and locker rooms of their gender identity instead of their biological sex. The guidance is not legally binding, but it implies noncompliance could result in the loss of federal aid.

The governors of Arkansas and Mississippi — Asa Hutchinson and Phil Bryant, respectively — told educators to ignore the directive. Gov. Greg Abbott announced Texas would fight the guidance, and Lt. Gov. Dan Patrick said the state was willing to forfeit billions of education dollars from the federal government.

Even before the directive, officials in eight states in the same week had called for a federal appeals court to reconsider a ruling that supported the administration’s position. Officeholders in Arizona, Kansas, Maine, Nebraska, North Carolina, Texas, Utah and West Virginia signed on to a friend-of-the-court brief asking all the members of the Fourth Circuit Court of Appeals in Richmond, Va., to rehear a case in which a three-judge panel sided with a Virginia transgender student who desired to use the boys’ restroom despite being a girl biologically.

The Fourth Circuit panel ruled 2-1 in April the ban on sex discrimination in the Title IX education amendments encompasses gender identity — a legal position rejected by conservatives.

The Gloucester County (Va.) School Board, which governs the district in which the transgender student prevailed, asked the appeals court for a rehearing May 3. In addition, Alliance Defending Freedom (ADF) — representing 50 students, parents, grandparents and other citizens — urged the full court to take the case and overturn the panel’s ruling.

While the Obama administration called for protection for transgender students in its guidance, ADF and others pointed to the safety and privacy of other students in their opposition to government efforts to base restroom and locker room use on gender identity instead of biological sex.

Title IX does the opposite of what foes of the Gloucester County schools’ sex-segregated policy argue it does, according to ADF.

“Title IX specifically authorizes schools to have separate restrooms and locker rooms for boys and girls,” ADF legal counsel Matt Sharp said in written comments. “The policy accommodates students who aren’t comfortable using facilities designated for their biological sex without neglecting the established right of children to bodily privacy and safety.”

The Gloucester County school district provided a separate restroom for the transgender student who brought the legal challenge, but she said using the alternative restroom further stigmatized her. The Obama administration backed her position.

ADF also filed federal lawsuits in two states — on behalf of students and parents in Illinois May 4 and in North Carolina May 10 — against the Obama administration in opposition to its interpretation of Title IX.

On Monday (May 16), President Obama defended his administration’s position, saying it is society’s responsibility to protect vulnerable children.

“Anybody who has been in school, in high school, who has been a parent should realize that kids who are sometimes in the minority, kids who have a different sexual orientation or are transgender are subject to a lot of bullying, potentially,” Obama told Buzz Feed News. “They’re vulnerable.”

While legal challenges mount, leaders are recommending responses to the directive.

Andrew Walker, director of policy studies for the Ethics & Religious Liberty Commission, said in a May 13 blog post, “[T]he restroom wars are merely a proxy debate for a larger conflict about what it means to be male and female. God made men and women as equal, but distinct. These distinctions are beautiful, good and a testament to God’s wisdom in creation.”

Walker recommended seven responses on the same day the administration directive was issued, including:

  • “[S]tates should refuse to comply with the federal government’s overreach. … This decree isn’t a law, and the threat of penalty doesn’t ensure a penalty….
  • “[S]tate legislatures should pass laws that counteract this decree. These laws should regulate restroom usage on biological sex and not amorphously-defined ‘gender identity.’ …
  • “Christian parents need to evaluate what this means for them and their children. They need to establish a tipping point. … What actions taken by your local school will be sufficient for you to re-evaluate public education? Is having a teacher reprimand your child for his or her belief about marriage, sex, and gender acceptable? … Are you uncomfortable with a biological male having access to the restroom and locker room that your daughter uses? … It is advisable that spouses have a candid conversation and establish a line in the sand.”

— by Tom Strode | BP

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