Transgender Controversy Engulfs Legislation and Schools

As Battles Heat Up, Bishops Communicate Concerns

RALEIGH, N.C. — As the national debate over “transgenderism” and religious and civic freedom continues to escalate, with passionate intensity over North Carolina’s “bathroom bill” and other states’ legislation, the Catholic bishops now have collectively voiced their own concerns.

In a May 16 statement, the U.S. Conference of Catholic Bishops denounced the “deeply disturbing” White House policy that the nation’s school districts must give students access to facilities (such as bathrooms, locker rooms and hotel rooms) consistent with the students’ own understanding of their gender, not their biological sex, regardless of others’ objections or concerns.

The statement was released after the U.S. Department of Justice and U.S. Department of Education issued a joint guidance called a “Dear Colleague” letter — with an implied threat of legal action — on May 13, announcing that the federal government was now treating “a student’s gender identity as the student’s sex” in enforcement of Title IX,  the 1972 anti-sexual-discrimination statute that applies to educational institutions receiving direct federal funding to subsidize educational programs and activities.

This means students’ access to sex-specific restrooms, locker rooms, housing and overnight accommodations, classes, activities and rules, and even potentially athletic teams, will no longer be determined by their objective biological sex, but by their “internal sense of gender.”

Also, the letter added, “There is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

This compliance includes using pronouns and names consistent with a transgender student’s preference. Schools are also required to change their records on a student, upon request, to make them consistent with the student’s new gender identity.

The move affects not only public schools, but also the nation’s Catholic schools and institutions of higher learning that have programs that directly receive federal funds and do not have a religious exemption. The U.S. Department of Education’s earlier expansive Title IX interpretations have already generated concerns among Catholic institutions about their Catholic identity. Both Catholic and secular academics have expressed alarm that fear of litigation (and potential loss of funding) at their universities over a Title IX complaint is leading over-cautious administrators to trample over their essential freedom to engage in academic discourse.

“Children, youth and parents in these difficult [transgender] situations deserve compassion, sensitivity and respect. All of these can be expressed without infringing on legitimate concerns about privacy and security on the part of the other young students and parents,” said the joint statement from Bishop Richard Malone of Buffalo, N.Y., chairman of the U.S. bishops’ Committee on Laity, Marriage, Family Life and Youth; and Archbishop George Lucas of Omaha, Neb., chairman of the USCCB Committee on Catholic Education.

The bishops said the Title IX directive “does not even attempt to achieve this balance” and is short-circuiting the ongoing political and cultural discussion at all levels “about how best to address these sensitive issues.”

They noted that Pope Francis, in his new apostolic exhortation Amoris Laetitia (The Joy of Love) taught that while biological sex can be distinguished from gender, they cannot be separated.

“The guidance fails to address a number of important concerns and contradicts a basic understanding of human formation so well expressed by Pope Francis: that ‘the young need to be helped to accept their own body as it was created,’” they said.


State Level

At the state level, some bishops have adopted nuanced positions with respect to legislation that has been targeted by federal agencies and groups like the ACLU for allegedly violating the rights of homosexuals and individuals who identify themselves as the opposite biological sex. In North Carolina, the law H.B. 2 was drafted to return to the status quo before the city of Charlotte passed its ordinance changing public restroom use from biological sex (male or female) to a person’s understanding of gender (masculine or feminine); and the issue subsequently has become the central flashpoint for the escalating national conflict between promoters of “gender-identity rights” and those opposing this agenda, for a variety of reasons, including religious-liberty concerns.

The U.S. Department of Justice sued North Carolina on May 9, stating that H.B. 2 was violating Title VII of the Civil Rights Act, which makes it illegal to discriminate based on sex, as well as violating Title IX. Attorney General Loretta Lynch compared the law to a return to Jim Crow.

North Carolina Gov. Pat McCrory launched the state’s own suit against the Justice Department the same day, saying the federal government’s inclusion of gender identity was a “radical reinterpretation of Title VII” and was bypassing Congress to set law and policy for the entire country. And in an interview with CNN, he rejected Lynch’s comparison of the North Carolina law to racial discrimination as “totally incomprehensible.”

However, the ABA Journal noted that local attorneys have other concerns over less-known aspects of the law: It appears to hamstring local governments’ ability to increase the minimum wage in their jurisdictions and deprives employees from initiating a civil action under the state’s non-discrimination employment statute against an employer. This means that North Carolina workers who believe they have suffered unlawful discrimination, such as on the basis of race or sex, will have to seek relief through federal courts.

Bishop Michael Burbidge of the Diocese of Raleigh stated that, after “thorough review” of the law and its possible impact, he believed “another remedy to the unfortunate situation created by the Charlotte Ordinance and H.B. 2 should be considered, whether that be legislation or some other measure.”

He said any remedy should “defend human dignity; avoid any form of bigotry; respect religious liberty and the convictions of religious institutions; work for the common good; and be discussed in a peaceful and respectful manner.”

Bishop Burbidge declined the Register’s request to elaborate further at this time.

In Mississippi, the American Civil Liberties Union is suing the state over its “Protecting Freedom of Conscience From Government Discrimination Act” (H.B. 1523), which protects religious institutions and private businesses from state discriminatory action regarding decisions they make to provide goods, services and accommodations consistent with their religious beliefs or moral convictions on marriage, sex within marriage and according to a person’s biological sex, not gender identity.

It also allows civil clerks, judges and magistrates to recuse themselves from providing marriage licenses to same-sex couples or officiating at their weddings.

Maureen Smith, communications director for the Diocese of Jackson, Miss., told the Register that the state’s two Catholic bishops initially supported the state’s religious-liberty bill, but they had reservations about the bill “after it was modified significantly” to include private business practices. She pointed to Bishop Joseph Kopacz’s lengthy statement explaining that the Catholic leaders sought the bill to protect the Church’s mission “with regard to education and social services,” such as their hiring practices for Catholic schools and adoption, foster care and refugee children-placement programs.

In Georgia, in late March, Gov. Nathan Deal vetoed H.B. 757, the “Free Exercise Protection Act,” which, among its provisions, protected religious ministers from performing same-sex weddings and faith-based organizations from renting or leasing their properties for purposes contrary to their values.


Caught Off Guard

President Barack Obama addressed the issue of transgender students in a May 16 interview with Buzzfeed legal editor Chris Geidner.

The president declined to address the North Carolina legislation, on the grounds that it was now subject of legal action, but he defended his administration’s new Title IX directives, which he said were issued because schools had requested guidance from the Department of Education.

“I think it’s part of our obligation as a society to make sure everybody is treated fairly and our kids are all loved and protected,” Obama said.

Ryan Anderson, a public-policy specialist on marriage at the Heritage Foundation, a Washington-based think tank, told the Register that the decisive victory that homosexual-rights groups won with the 2015 Obergefell decision legalizing same-sex “marriage” nationally emboldened them to consolidate their gains and to fight dissent at the state level much faster than most people anticipated.

“They’ve [also] shifted their focus from the ‘LGB’ part to the ‘T’ part, and that’s why you see, almost out of nowhere, a very kind of staunch ‘no dissent on transgender issues’ being embraced by the Obama administration and prominent Hollywood figures,” he said.

“For dioceses, they have not really had much time to think about this, either theologically, philosophically or scientifically, from a mental health or medicinal perspective,” he said. “They haven’t had the time because, up until a year ago, when [ABC News] did the first [Bruce] Jenner interview, this hadn’t been a primetime topic of conservation.”

Another aspect at work has been large corporations exerting pressure on states to conform or else pay the price, in terms of jobs and investment.

This form of “cultural cronyism,” Anderson said, was most famously demonstrated in Indiana, where the state was forced to back off from its RFRA law, as millions of dollars were pulled out. In Georgia, the National Football League had threatened to relocate the next Super Bowl to another state if H.B. 757 was not vetoed. North Carolina, which has held firm, lost 400 jobs from Paypal’s canceling off an expansion over H.B. 2.

“I don’t see this dying down anytime soon,” Anderson said. “They’re committed to using their outsized market share to lobby the government into doing their bidding.”