Title IX: From Common Sense to Coercion

EDITORIAL: Stubborn questions about the administration’s right to alter a long-standing interpretation of Title IX could be decided by the U.S. Supreme Court.

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When government policy is hijacked by partisan interest groups, federal rules and regulations gradually lose any practical or moral coherence. One government office issues a set of directions that contradict those supplied by another department, and U.S. citizens must do their best to navigate a confusing and even demoralizing political landscape. Absent any rational, commonsense basis for prosecuting such laws, coercion becomes increasingly necessary.

At present, the Department of Education’s updated interpretation of Title IX language that bars sexual discrimination in schools and universities offers a disturbing example of this type of fractured governance.  

Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In the early 1970s, the language of the civil-rights movement was applied to a law that reflected growing concerns about sexual discrimination, especially with regard to women in universities who faced limited opportunities for participation in team sports. 

In recent years, the Obama administration has used Title IX to push universities and, more recently, K-12 schools to address sexual assaults on campuses. It has argued that students’ access to education has been negatively affected by the existence of a hostile environment.

More recently, however, the administration has also adopted an interpretation of Title IX that defines “sex” as including men and women who do not identify with their biology.

In January 2015, Acting Deputy Assistant Secretary James Ferg-Cadima issued a letter that signaled this shift in government policy.

“The [Education] Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity,” read the letter issued by Ferg-Cadima.

The striking shift in government policy gained national prominence after a female Virginia high-school student, who identifies as male, sued a local school board after it issued regulations that directed students to use bathrooms that correspond with their “biological gender” and so-called transgender students to use a separate, unisex bathroom.

The board issued the directive after parents, concerned about the student’s use of the boys’ bathroom, pressed for clarification of school rules.

Last month, a three-judge panel on the U.S. Court of Appeals for the Fourth Circuit ruled that the student could sue the school board on discrimination grounds and concluded that the federal government had the right to interpret Title IX as it saw fit.

The lawsuit against the Virginia school board will now move ahead, but stubborn questions about the administration’s right to alter a long-standing interpretation of Title IX could be decided by the U.S. Supreme Court.

Indeed, an Illinois-based parents’ group, Students and Parents for Privacy, has already filed a legal challenge to the new regulations, seeking to stop a local school district from “forcing 14- to 17-year-old girls to use locker rooms and restrooms with biological males.”

The Human Rights Campaign, the nation’s leading homosexual-rights advocacy group, defines “transgender” as “an umbrella term for people whose gender identity or expression is different from those typically associated with the sex assigned to them at birth (e.g., the sex listed on their birth certificate).”

Information posted on the organization’s website explains that some people “begin living as the gender with which they identify, rather than the sex assigned to them at birth. This may or may not include hormone therapy, sex-reassignment surgery and other medical procedures.” Based on this information, changes in school bathroom rules would likely mean that students of all ages would encounter clearly identifiable members of the opposite sex during visits to bathrooms and locker rooms.

Political activists and sympathetic media outlets have questioned the validity of public concerns about privacy and safety issues, yet the Obama administration itself has separately investigated a surge in reports of sexual misconduct at K-12 schools, as well as universities.

Taking note of the parallel effort to use Title IX in its fight against sexual misconduct on college campuses, Ed Whelan at National Review’s Bench Memos contended that the “dual Title IX campaigns are at war with each other, as some female college students will find that having men in their shower and bathroom facilities creates a threatening environment.”

What are we to make of our federal government’s efforts to wage two separate legal battles with seemingly contradictory aims? We are witnessing an approach to governance that shows an acute sensitivity to the demands of narrow interest groups, but a stark lack of concern for commonsense practices that offer privacy and security to women and children. And to be clear, many leading opponents of the new rules believe that individual unisex bathrooms provide reasonable accommodation for people who self-identify as a member of the opposite sex. 

A government that forces its own citizens to adopt unreasonable, ideologically-driven policies offers no compelling or consistent vision of human flourishing that can unify a nation. And some might argue that the wholesale promotion of such policies by our nation’s elites have fueled the public’s distrust of our institutions.

In contrast is the plain wisdom of Pope Benedict XVI, who, in his beautiful 2009 encyclical Caritas in Veritate (Integral Human Development in Charity and Truth), wrote, “Without truth, without trust and love for what is true, there is no social conscience and responsibility, and social action ends up serving private interests and the logic of power, resulting in social fragmentation.”

Now more than ever, we must ponder Benedict’s wise words and his blueprint for a transformed politics: “Fidelity to man requires fidelity to the truth, which alone is the guarantee of freedom (John 8:32) and of the possibility of integral human development. For this reason the Church searches for truth, proclaims it tirelessly and recognizes it wherever it is manifested.”