Feds: All public schools must redefine gender

The Obama administration officially took the so-called bathroom debate to the national stage today by issuing a directive requiring all public schools to allow transgender students to use the restroom or locker room facilities of their choice. Schools that refuse risk losing federal funding.

In a joint letter, the U.S. departments of Justice and Education told every school district in the country that sex under Title IX is not defined by a student’s birth certificate but rather his or her gender identity. Under new school standards outlined in the letter, as soon as a parent or legal guardian claims a child’s gender identity differs from previous records, the school must treat the student accordingly. That means if a male student claims to be a girl, the school must allow him to use the girl’s restroom and locker room facilities without the need to produce a medical diagnosis or birth certificate.

The federal directive comes amid dueling lawsuits between North Carolina and the Justice Department over a state law that protects businesses that base access to restrooms and locker rooms on biology, rather than gender identity. Attorney General Loretta Lynch called the rule “state-sponsored discrimination” against transgender persons and compared it to Jim Crow laws.

North Carolina Gov. Pat McCrory, a Republican, has repeatedly called keeping persons in the facilities that match their biology a common-sense practice and claims the Obama administration is abusing federal power by reinterpreting sex under federal statutes. McCrory has asked Congress to bring clarity to Title IX, but with competing federal suits already at play, all roads point to an eventual Supreme Court decision to determine how businesses and schools must accommodate transgender individuals.

“The federal government is reinterpreting statutes, saying what they mean, with no warrant other than their own political will,” said Jeremy Tedesco, senior counsel for Alliance Defending Freedom. “People don’t understand the unprecedented nature of what’s going on and how dangerous it is for freedom.”

Tedesco told me the Supreme Court will have to decide whether sex means biological male and female, or something else. Meanwhile, he said federal agencies continue to abuse their power in an unmatched fashion by forcing institutions to comply with their own interpretation of the term.

Others agree the debate is about more than which bathroom Americans use—it’s about what power the federal government has to enforce its own ideology.

“[W]e should recognize what’s really happening here, and it’s much bigger than the symbol of the bathrooms,” said Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. “I’m quite aware of the White House’s place in our culture wars, and even I am surprised. If anyone had suggested in 2009 that the new president’s administration would seek to target children’s bathrooms for the sake of transgender ideology, the White House would have ridiculed it as a crazy conspiracy theory.”

Rep. Robert Pittenger, R-N.C., told me the broader issue is that Congress should be writing federal laws, not the White House.

“I am not one who believes in mandates from the federal government, I am someone who believes in the autonomy and authority of states,” he said. “This has enormous implications.”

It also carries a potentially huge price tag. The Obama administration initially threatened North Carolina with the loss of millions in federal funding for the state’s public universities if lawmakers didn’t repeal the law. But late yesterday, the White House announced it would not withhold federal dollars until after the court battles conclude.

In a Facebook post, McCrory likened the news to stopping a bully by standing up to him. But the Obama administration maintains the transgender community is the bullying victim.

In today’s letter, Department of Education Secretary John B. King Jr. said allowing students to use the restroom and locker room facilities of their choice helps ensure students can learn in an environment free from discrimination, harassment, and violence. Lynch added the new guidance gives administrators, teachers, and parents the tools they need to protect transgender students from peer harassment and to end unjust school policies.

Texas Gov. Greg Abbott, a Republican, already denounced the new guidance for public schools and said President Barack Obama is not a king who can rewrite the Civil Rights Act.

“We shouldn't even be having to have this debate in America,” Abbott said. “I am working with the governor of North Carolina and we are going to fight back.”