On May 13th the Education Department’s Office for Civil Rights (O.C.R.) and the Justice Department’s Civil Rights Division issued a Dear Colleague letter that invoked Title IX to stipulate that students claiming to be transgender must be allowed to use the restroom “consistent with their gender identity.” Schools that refuse risk the loss of federal funding.
New Yorker magazine writer and Harvard Law professor Jeannie Suk, as you might imagine, believes that the "appropriate bathrooms" for those calling themselves transgender are the ones that fit their gender identity.
What is not so much to be expected is that Suk shows that the government's putting Title IX to this use may have put the Obama administration's directives on handling sexual accusations on campus, also ostensibly derived from Title IX, on a collision course with the new bathroom directives:
But the parents’ rhetoric of federal overreach on Title IX is not off base. It is of course unexceptional for the federal government to enforce federal law. But, unlike the Education Department’s many regulations, the Dear Colleague letter is not law, because it wasn’t enacted through legal procedures, involving public input, that federal agencies must follow when making law.
The Education Department’s rule that schools must provide prompt and equitable grievance procedures to hear complaints of Title IX sex discrimination results from that required process and is legally binding. But the agency chose not to have such a process for its missive on transgender students.
This is a familiar but controversial O.C.R. strategy. Its last Dear Colleague letter about Title IX, in 2011, said that sexual violence is a form of sexual harassment and is therefore sex discrimination. It detailed how colleges and universities must discipline perpetrators and prevent such incidents. It too came with a threat to cut off federal funds, and O.C.R. proceeded to investigate hundreds of schools for noncompliance. (O.C.R. found Harvard Law School, where I teach, in violation of certain terms of the Dear Colleague letter. I have been critical of the federal pressure on schools to adopt policies and procedures that deny fairness to accused students in the name of Title IX compliance.) Several lawsuits claiming that O.C.R. unlawfully promulgated and enforced the contents of its Dear Colleague letter on sexual violence are currently pending in the federal courts.
Whether or not the federal government acted unlawfully, it has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms. Schools attempting to comply with the federal bathroom policy have at least two possible ways of doing so: allow students to use sex-segregated bathrooms and locker rooms based on their gender identity, or move away from sex segregation of such facilities. The latter, gender-inclusive arrangement, which was in place in my college dormitory more than twenty years ago, is not uncommon on campuses, and a social movement to desegregate at least some portion of bathrooms is growing. Some colleges have made every bathroom on campus open to any gender, and this solution could well become a practical choice at K-12 public schools.
But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. This is not wholly hypothetical.
. . .
Continuing to have segregated bathrooms could also put schools in a bind on Title IX compliance. According to the federal government, a transgender girl who is told to use the boys’ locker room, or even a separate and private stall, instead of the girls’ facility, has a claim that the school is violating Title IX. A non-transgender girl who’s told she must share a locker room with boys may also have a claim that the school is violating Title IX. But would she not have a similar claim about having to share with students who identify as girls but are biologically male?
As the headline to the story indicates, Suk foresees "a looming Title IX crisis."
As Power Line observed:
When you’ve lost The New Yorker. . . Or maybe we should simply have recourse, once again, to the Roman poet Horace: “Naturam expelles furca, tamen usque recurret.“ You can expel nature with a pitchfork, yet she will hurry back. Maybe it’s time for the Obama DoJ and DoE to take a long bathroom break.
Since Title IX, a 1972 statute that simply prohibited sexual discrimination, has been put to so many uses for which it was never intended, the crisis is welcome. It's high time to sort of all the many regulations that have been issued in the name of Title IX.