On May 13, 2016, the Obama Administration's Department of Education and Department of Justice issued a joint "Dear Colleague Letter on Transgender Students, declaring that the agencies would "treat a student's gender identity as the student's sex for purposes of enforcing Title IX." This brash claim clearly ignores the letter and the spirit of the 1972 Civil Rights Act, which intended to protect against discrimination based on individual's biological sex, not their subjective self-perceived gender identity.
In his article responding to the guidance, Obama Unilaterally Rewrites Law, Imposes Transgender Policy on Nation's Schools, Ryan T. Anderson, Ph.D., the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation, points out three major problems with this sweeping and illegal executive overreach:
"The Obama Administration Is Unlawfully Rewriting Law: In 1972 when Congress passed Title IX of the Education Amendments, no one thought that "sex" meant "gender identity." It didn't mean it then, and it doesn't mean it now. The Obama administration is unlawfully rewriting federal law. The term "sex" is not ambiguous, and is not subject to executive branch agencies redefining to now mean "gender identity...
"...The Obama Administration Is Unnecessarily Meddling in State and Local Matters: The Obama administration is attempting to force a one-size-fits-all policy on the entire nation rather than allow parents and teachers and local schools the time, space, and flexibility to find solutions that work best for everyone...
"...The Obama Administration Is Imposing Bad Policy on the Entire Nation: The Obama administration's official policy is that boys who identify as girls should have unfettered access to girls' bathrooms, locker rooms, and shower facilities. Anything less than full access to the bathroom and locker room of their choice is, the administration says, a transphobic denial of civil rights and equality. This extreme position is out of step with the majority of Americans, and utterly inconsiderate of the concerns of the non-transgendered community."
The Administration's abuse of the law in this manner is not limited to the education space, but also employment, housing and shelters, business regulation, and health care. Indeed, five days after issuing its Title IX transgender directive, the Obama Administration issued new Obamacare regulations that purport to treat bans on "sex discrimination" as meaning "gender identity." As a result, the regulations require doctors, hospitals, and insurers, to cover and perform sex reassignment procedures and treatments, even on children, whether or not they believe it is the best medicine and with no religious exemption for objecting physicians. The regulations endorse and enforce a controversial and heavily contested view through government coercion.
In the wake of such a blatant social-engineering overreach, which defies common sense, Congress must reassert its institutional prerogative as the lawmaking branch by defending their clear, original intent regarding sex in the passage of the 1972 Education Amendments. While a few Republican lawmakers have introduced legislation in response to the transgender bathroom guidance, there is only one bill that would adequately address the problem: Congressman Pete Olson's Civil Rights Uniformity Act (H.R. 5812).
On July 14, 2016, Representative Pete Olson (R-Texas) introduced H.R. 5812, the "Civil Rights Uniformity Act," a bill that reasserts that the proper constitutional authority for social transformation belongs to the legislative branch, not an overreaching executive. The Civil Rights Uniformity Act would stop all references to the words "sex" or "gender" from being misinterpreted to mean "gender identity" in Federal civil rights law, including Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act of 1964, the Fair Housing Act, Obamacare, and other laws. The bill affirms the common sense truth that when Congress passed civil rights laws banning sex discrimination, the purpose was to protect people according to objective biological sex, not a subjective, self-declared "gender identity."
In short, the Civil Rights Uniformity Act clarifies that sex does not mean gender identity for the purpose of interpreting or enforcing civil rights statutes. This simple solution would stop the aggressive push by the Obama administration to rewrite the law, in both our classrooms, and doctor's offices, while providing much needed clarification for K-12 schools across the country that currently fear for their federal funding. The bill would not only roll back the unlawful guidance, but also serve to break congressional silence on this issue, which can be interpreted by the courts as consent.
In fact, in response to the letter, Texas and a coalition of 12 other states filed a federal lawsuit against the Obama administration in order to prevent the guidelines from taking effect. On August 21st, U.S. District Judge Reed O'Connor ruled against the administration and temporarily blocked the ED from implementing the directive. Judge O'Connor ruled that the ED and DOJ exceeded their authority under Title IX by not allowing the public the proper time to comment and by reinterpreting the law against the will of Congress. According to the Judge, "It cannot be disputed that the plain meaning of the term sex...meant the biological and anatomical differences between male and female students as determined at their birth."
Upon introduction, Rep. Olson clearly and strongly stated that:
"We must stop this administration's blatant disregard for the constitution by unilaterally redefining the definition of 'sex' with respect to the Civil Rights Act. The people I represent have resoundingly rejected the notion of false power stolen from Congress by a White House seeking to impose social policy on America. The Founding Fathers never intended unelected bureaucrats in federal agencies to make sweeping changes to the definition of gender. We must restore the voice of the people given to them by our Constitution and put an end to this dangerous precedent of removing Congress' power to make laws."
Conclusion: The threat imposed by this guidance on well-meaning parents, school administrators, and students across the country is real and imminent. As Roger Severino, Director of the DeVos Center for Religion and Civil Society at The Heritage Foundation writes:
"Across America, people are considering how best to accommodate the privacy and safety concerns of transgender persons while also addressing the privacy and safety concerns of others, especially children and students.
"They've been able to reach solutions, such as opening new single-occupancy restrooms and changing facilities for transgender students while keeping girls' and boys' rooms for biological girls and boys. But activists attacked these commonsense compromises as 'transphobic.'
"Congress must prevent the Obama administration from redefining what it is to be a man or a woman for all Americans. Congress must prevent the Obama administration from forcing Americans and their institutions to fall in line or be sued, stripped of funding, or forced out of business."
***Heritage Action supports this legislation, encourages Representatives and Senators to support it, and reserves the right to key vote in the future.***