On Monday the Supreme Court announced it was remanding the now-infamous transgender case of Gavin Grimm to the Fourth Circuit Court of Appeals. This comes following President Trump’s decision to reverse the Obama administration’s guidance pushing public schools to let transgender kids to use bathrooms and other private facilities as the sex they identify with.
The media, parents, and the LGBTQ lobby has been up in arms. Amid lawsuits and media blitzes, they claim these children just want to use the bathroom peacefully and quietly. They insist the unisex or separate male and female restrooms students have been using for the last 200 years of public education isn’t enough and is, in fact, insulting to transgender students. This is absurd.
While certainly every student should feel safe in school, groups like the American Civil Liberties Union are parlaying students’ desire for security and acceptance into a political agenda.
What the Hubbub Is All About
Last spring, two midlevel Obama administration bureaucrats issued a letter to every public school district that said the federal government would consider them out of compliance with sex discrimination law known as Title IX if all schools did not allow transgender students to use facilities that match their gender identity. Because it was “guidance” and not a formal “regulation,” the letter did not go through the typical lengthy review process, which includes required public input. Although it didn’t carry the force of law, the New York Times reported this letter “contained the implicit threat: Schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or a federal loss of aid.”
The Obama administration, armed with specialized attorneys, acted like a pair of amateur surgeons: They took the word “sex” in Title IX of the Education Amendments of 1972, hacked it open with a sledgehammer, shoved “gender identity” inside, then stapled it back up and handed it to the American public education system, mangled and bleeding. This four-decades-old law had never been interpreted to apply to gender—the social perception of one’s biological sex—until the Obama administration got ahold of it. Its rewrite reversed all related regulations, which had gone through the traditional public comment process, and opposed a plain-text reading of the law itself.
Then the administration sat back and watched as lawsuits on the issue sprang up all over the country. School boards began fighting, parents grew furious, and kids became confused. As became clear, a move to redefine sex as gender is not only a religious, but a legal, nightmare.
It’s such a nightmare, it’s already been struck down by one court. As The Federalist reported in November, the U.S. Department of Health and Human Services (HHS) implemented a dangerous mandate, also last May, that required doctors to “perform gender transition procedures on children even when those procedures may be physically and emotionally harmful to the child.” This was also based on reinterpreting Title IX by exchanging the terms and concepts “sex” and “gender identity.” A few months ago, a Texas court struck this down.
Contrary to the dramatic headlines, Trump didn’t execute an executive order or support a law for or against transgender people. What he did was reverse federal overreach. As the Trump administration’s letter states, the Obama administration “guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
So the Trump administration struck down an extralegal policy the administration had no power to make in the first place. This decision is about unlimited federal power, not transgender policies. The Obama administration’s action was not only not authorized by law, it contradicted the law. This is just as important as the actual transgender bathroom issue.
As For that Bathroom Issue
Since this point about legality seems to be lost on so many, let’s again review the issue causing such an emotional uproar.
It’s estimated that 0.3 to 0.6 percent of the adult American population are transgender: a person born as a biological male who feels female, or vice versa. So an even smaller percentage are students in public high schools. We’re talking 0.1 to 0.3 percent at best. To put this in perspective, more students—about 2 percent of high school athletes—receive an athletics scholarship for college, according to the National Collegiate Athletic Association.
Although small in number, these students, their parents, and the LGBTQ lobby have a massively outsized effect on everyone else’s privacy and comfort. That headlines blare “Alarmed by Trump, schools protect vulnerable students,” or The New York Times claim the Trump’s letter drop is a “setback” for transgender rights not only misses the legal and separation of powers angle entirely but demonstrates a bizarrely skewed viewpoint: What if it’s not necessarily a setback for transgender rights, but a victory for people who just want to go to the bathroom with—wait for it—people of their same sex?
Three percent of the population struggles with anorexia, a mental disorder that manifests itself via restricting caloric intake to the point of illness or even death. If people struggling with anorexia lobbied for the “right” to make everyone in the high school cafeteria skip lunch with them and were denied, would it be a setback for anorexics or a victory for health and wellness?
But These Kids Just Want Their Rights
The entire Grimm case rested on pretending the Obama administration letter had the force of law. All the Trump administration did was withdraw the letter. Make no mistake: The issue isn’t and never was about where kids can use the bathroom.