President Obama’s Unilateral Transgender Policy for School Bathrooms

Background: On Friday May 13, 2016, President Obama’s Department of Justice (DOJ) and Department of Education (ED) issued a letter of joint guidance on transgender bathroom access for America’s school system. Using Title IX of the Education Amendments of 1972, the Obama administration is reinterpreting discrimination against “sex” to include “gender identity.” The new guideline directs any educational institution which receives federal funds to allow transgender students to use bathrooms and locker rooms that correspond to their gender identity, rather than their birth certificate.

Unlawfully Rewriting Law: Biological sex and gender identity mean two very different things. When Congress passed the Education Amendments back in 1972, the purpose was to protect women and girls from discrimination based on sex and ensure equal opportunity in education programs. The Obama administration has no right to unlawfully rewrite federal law in order to advance its own liberal social agenda in the wake of transgender bathroom disputes, must notably in North Carolina.

Violating Federalism: All across the country, state and local governments are working with parents, teachers, and school districts to determine how best to accommodate the privacy and safety of transgender students along with those students who feel uncomfortable going to the bathroom and changing with the opposite sex. For example, many schools have created new single-occupancy bathrooms and changing facilities for transgender students. The Obama administration’s decision to unilaterally impose a one-size-fits all policy for every school in the country undermines the ability of state and local governments to enact and enforce policy that’s best for their communities.

Bad Policy: Sex-specific bathrooms and locker rooms were created for a legitimate reason. Allowing boys who identify as girls to have unfettered access to girls’ bathrooms, locker rooms, shower facilities, and dorm rooms violates the privacy and safety of women. Sex-specific bathrooms serve a valid purpose of protecting the privacy and safety of girls and women, especially those who have been sexually abused.

Frequently Asked Questions:

How will President Obama enforce the guidance?
The joint guidance issued by the DOJ and ED does not have the force of law, though activist courts may interpret it as such, leaving schools under immense pressure to comply. President Obama is attempting to bully state governments into compliance by threatening to strip schools of federal funding. Until the guidelines are upheld by the courts, schools should refuse to comply with President Obama’s overreach.

What schools are affected by the guidance?
If the courts uphold the President’s guidelines, all schools, including colleges, universities, trade schools – public, private, and charter – that receive federal funding will have to comply or lose their federal funds. This could have significant negative repercussions on the school choice movement as well.

How does the federal government define “gender identity?”
According to the Obama administration’s guidelines, “Gender identity refers to an
individual’s internal sense of gender.” Furthermore, a “school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.” Essentially, a student is transgender if and when they say they are.

Can schools provide separate bathrooms and locker rooms for transgender students?
No. The Obama administration explicitly rejects compromises including single-occupancy facilities. According to the guidelines, “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

Do these guidelines apply to housing policy as well?
Yes. Separate accommodations for transgender students are not permitted. This applies to campus housing and hotels for off-campus trips as well, “A school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations.”

What can be done to reverse the DOJ/ED guidance on transgender bathrooms?
Congress can actively push back against President Obama’s overreach by passing legislation clarifying that for the purpose of all federal law, “sex” does not mean “gender identity” or passing legislation that “sex” does not mean “gender identity” for the purpose of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1968. Congress can also defund the guidance by attaching a defund rider to an appropriations bill(s) that stops the DOJ/ED from using federal funds to enforce the guidance.

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House Should Continue Rejecting Amendments that Undermine Religious Liberty

Last Thursday, Republicans in the House of Representatives defeated an anti-religious liberty amendment offered by Rep. Sean Maloney (D-NY) 15% to the 2017 Military Construction and Veterans Affairs (MilCon/VA) appropriations bill (H.R. 4974).  Though not immediately clear at first glance of the actual amendment text, the Maloney amendment would have further ratified an overreaching executive order issued by President Obama in 2014, which threatens religious liberty for private institutions who may contract with the federal government.  As The Heritage Foundation’s expert on religious liberty Ryan Anderson wrote in 2014,

“[President Obama’s executive] order disregards the consciences and liberties of people of goodwill who happen not to share the government’s opinions about issues of sexuality. All Americans should be free to contract with the government without penalty because of their reasonable beliefs about morally contentious issues.”

How does the EO disregard conscious and liberty, infringe upon the First Amendment, and the free exercise of religion?  There are at least 4 main policy problems, which Ryan Anderson also detailed last week after the Maloney amendment failed:

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Largest Energy & Water Bill in the History of the House

This week, the House will consider H.R. 5055 the FY 2017 Energy & Water Appropriations bill. This legislation provides funding for projects under the direction of the U.S. Army Corps of Engineers, the Department of the Interior’s Bureau of Reclamation, the Department of Energy, and the Nuclear Regulatory Commission.

The bill spends a total of $37.4 billion, which is $259 million above FY16 enacted levels and $168 million above the President’s request. Furthermore, it aligns with the spending caps enacted as part of the Bipartisan Budget Act (BBA) last fall.

Each individual appropriations measure should be evaluated on the following three criteria: 1) level of spending; 2) funding of bad programs; and 3) exclusion of conservative policy riders. On the first two counts the House’s version of the FY17 Energy & Water Appropriations bill certainly falls short. On the third, the bill includes some of the key riders conservatives demand. That said, few are likely to become law — as last year’s House-passed E&W demonstrated when important riders were ultimately left out of the December omnibus — while the elevated spending levels appear on track. The Senate-passed E&W bill, with its lack of important riders, defines the upper chamber’s position.

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Defund HUD’s Affirmatively Furthering Fair Housing Rule

Background: On July 8, 2015, the Department of Housing and Urban Development (HUD) finalized language for a new housing regulation named the Affirmatively Furthering Fair Housing Rule (AFFH). This new 377 page rule, first implemented in mid-August of 2015, empowers the Federal government to audit the demographic and socioeconomic status of local communities in order to force state and local governments to enhance diversity among its community makeup.

All local jurisdictions that receive HUD funding, particularly through the Community Development Block Grant program, are subject to this rule and must identify factors and communities assets that contribute to the racial disparities in their communities compared to those at the local and regional level around them. Once this evaluation is complete, localities must develop a plan on how to fix the racial disparities and submit it to HUD for approval.

Problem: AFFH effectively turns HUD into a National Zoning Authority for every locality across the country. Suburban neighbors will have to compare themselves with neighboring cities and essentially rewrite their zoning laws and pay for affordable housing projects and other community development projects to encourage housing diversity and affordability in their communities.

According to department officials, this rule is needed because “increasing a neighborhood’s appeal to families with different income and ethnic profiles can encourage a more diversified population and reduce isolation.” While this may be a goal worth pursuing, local authorities, not unaccountable federal bureaucrats should be making these decisions.

As Senator Mike Lee (R-UT) so plainly puts it, “In other words, this new regulation is designed to give unelected, anonymous bureaucrats in Washington the power to pick and choose who your new next-door neighbor will be. If they don’t believe your neighborhood is “diverse” enough, they will seize control of local zoning decisions—choosing what should be built, where, and who should pay for it—in order to make your neighborhood look more like they want it to.”

Solution: Congress must use its Constitutional power of the purse to defund any implementation of the AFFH rule. The House of Representatives has already passed Rep. Paul Gosar’s (AZ) amendment to defund the AFFH rule and attached it to the Transportation, Housing and Urban Development and Related Agencies Appropriations Act for Fiscal Year 2016. The Senate must now take up and pass Sen. Lee’s AFFH defunding amendment to make sure this reaches the President’s desk and is signed into law. Local communities, not bureaucrats in Washington, D.C., should determine the social and economic makeup of their own neighborhoods.

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New budget plan doesn’t address the underlying disagreement

House leaders, trying to break the impasse stalling the chamber’s budget and appropriations process, are putting forward a new plan designed to get conservative support for a budget that sets FY17 discretionary spending at $1.070 trillion, the cap created by last fall’s budget deal.

The plan would combine the traditional congressional budget resolution with formal legislative bill text that would achieve $30 billion in savings in the first two years and $170 billion over ten.  It would not be a strictly congressional resolution as budgets are, but rather a bill that could theoretically be signed into law.  A “leadership source” explained the plan to Politico, saying:

“[T]he budget then couldn’t take effect without the mandatory savings, which target Medicaid and Obamacare, also being enacted. Such a move would allow conservatives to claim they voted for a budget with less spending than prescribed by the Obama-Boehner deal. But members of the conference’s right flank were cool to the proposal. They noted it was unlikely the package would be passed by the Senate or signed into law by Obama.”

That fact that this new proposal is intended to gain the support of conservatives for the $1.070 trillion budget number without providing a way of actually achieving the goals they have laid out, invites the question: Why is this plan being put forward? If this is simply an exercise to get conservatives on record supporting a budget (any budget, even one with ancillary provisions) at 1070 in order to weaken their resolve to oppose efforts later this month to move appropriations bills written to the 1070 level, then it is a poor exercise and a waste of time.

House Republicans have serious policy differences on how to move forward with this year’s budget and appropriations process. Those differences can’t be papered over or avoided with proposals that don’t address the fundamental disagreements in question.

This proposed plan does nothing to address that fundamental disagreement.

What’s more, all budget resolutions contain “illustrative policy options” to achieve its underlying assumptions. Adding specific bill text to achieve some of those savings (though in this instance, representing less than 2.5% of the proposed savings contained in the budget), and having members vote on those specific savings, can rightfully be seen as a positive step; however, contrary to some talking points, sidecar legislation spelling out specific cuts is not revolutionary. Back in 2012, the House passed follow-up legislation to its budget laying out $310 billion in specific deficit reductions. That legislation was not coupled with a meaningful strategy to enact those cuts, and thus was not taken up in the Senate and died a quiet death. This plan appears likely to meet the same fate.

To be clear, the cuts that are reportedly included in the bill are generally worthwhile and while this bill certainly has merits in isolation, it does not in any way change or address the fundamental issue at hand. Conservatives in the House have made their demands clear: they will not vote for $1.070 trillion in discretionary spending, including appropriations written to that level, unless $30 billion in cuts are enacted.

Unless there is a strategy and path forward to getting this new plan through the Senate and signed into law by the President, conservatives in the House should continue to oppose the “1070” budget level and make clear that this plan doesn’t bind them to supporting appropriations going forward. In fact,they should continue to oppose those appropriations bills unless and until the bill’s cuts get signed into law.

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