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Federal Policies on Transgender Students: Serving Neither the Community, the Family, nor the Transgender Student

source: http://www.thepublicdiscourse.com/2016/06/17211/

The recent “Dear Colleague” letter from the Departments of Justice and Education relies on an ideology of expressive individualism to handle issues of gender identity. It does so to the detriment of community, family, and those it intends to serve. It also eliminates one of the most basic and universally accepted forms of privacy.


The desire for privacy of one’s naked body has pervaded most societies for millennia. With very few caveats, societies worldwide and through recorded history have sought to regulate whose naked body could be displayed where, and to whom. The most common privacy norm is that, in public or common areas, an individual should not expose nor be exposed to the naked body (or, at least, the genitals) of the opposite sex. Specifically regarding US law, Ruth Bader Ginsburg observed in a 1975 Washington Post op-ed that, for the sexes, “separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy” (emphasis added).

This norm does not appear to stem from mere fussiness on the part of individuals or society. Rather, it emanates from a worldwide heritage of managing how the sexes interact. Indeed, it would be difficult to identify a more personal, intimate, or universal norm of privacy.

Unfortunately, the policies regarding gender identity put forth by the Departments of Justice and Education in their recent “Dear Colleague” letterundermine this most basic form of privacy. This letter instructs public schools to allow students to use locker rooms, showers, bathrooms, and sleeping accommodations not based on biological sex, but rather based on their personal sentiment regarding their gender (their “gender identity”). While the difficulties of such a policy are numerous, these difficulties are severely compounded by the letter’s adherence to the ideology of expressive individualism in every aspect of the policy’s implementation. Sadly, this adherence removes numerous opportunities for community and family involvement and support for these minors.

Overview of the Dear Colleague Letter

The DOJ and DOE’s May 2016 “Dear Colleague” letter to public schools requires that students should be allowed the use of locker rooms, showers, bathrooms, and overnight accommodations that conform to their gender identity rather than their anatomy. Here are a few key points:

1. “. . . when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity . . . there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

2. “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.” This includes locker rooms, showers, bathrooms, and sleeping arrangements on overnight stays.

3. Schools “must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students.” This “personal information” includes the child’s biological sex.

4. Schools are not allowed to disclose the biological sex of the transgender student to other students. They are also not allowed to disclose this information to school personnel who “do not have a legitimate educational interest in the information.”

5. Schools may, but are not required to, provide access to alternative facilities for those who do not desire to be in areas where they may be exposed to those of the opposite biological sex.

6. These above points still hold “even in circumstances in which other students, parents, or community members raise objections or concerns.”

Public schools that do not adhere to these points jeopardize their federal funding. The Departments of Justice and Education justify their positions on these matters based on Title IX, which prevents sex discrimination. Yet Title IX (drafted in 1972) does not include the concept of “gender identity,” and more than thirty years' worth of precedent has established that Title IX should not be interpreted as prohibiting single-sex facilities for changing, showering, using the restroom, and sleeping arrangements.

read more at: http://www.thepublicdiscourse.com/2016/06/17211/