Contrary to almost all the news reporting on this story, the real question addressed by the new administration’s guidance is not (at least not directly), “Which restrooms or locker rooms should students who identify as transgender use?”
Instead, it is something much simpler — “Who gets to decide?”
The answer that President Trump’s administration has now given is also simple: “Not us. Not the federal government.”
The two Obama administration documents that have now been rescinded — a 2016 “Dear Colleague” letter to every school district in the country, and a lesser-known “opinion letter” issued January 2015 — asserted a specific interpretation of a specific federal law.
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“Title IX” is common shorthand for “Title IX of the Education Amendments of 1972” — a federal law which prohibited discrimination on the basis of “sex” in any school that receives federal funds (as all do).
The Obama administration argued that discrimination based on “sex” includes discrimination based on “gender identity;” and that failing to treat students in accord with their self-perceived “gender identity” (rather than their biological sex) in all school activities (including restroom and locker room assignments) constitutes such “discrimination.”
This position is legally untenable…