No school has to allow transgender students in the bathrooms of the opposite sex, regardless of what President Obama says. That's according to Matt Sharp, legal counsel with the Alliance Defending Freedom or ADF.
Sharp said President Obama's sweeping directive telling schools they must allow transgender students to use the bathrooms of their choice "violates the clear meaning of Title IX. It also violates Congressional authority, and state authority on this issue. And, it violates students' rights to privacy."
Though the president is threatening to withhold federal funding from any school that does not comply with his directive, Sharp said the administration must win its case in court before it can pull funding. However, to date, the administration has lost every court case challenging its transgender directives, except one.
In November, I wrote a story explaining the history surrounding the Obama administration's attempt to use Title IX as a basis for forcing schools to allow boys in girls' bathrooms and vice-versa. The bottom line is that Title IX explicitly allows schools to "provide separate toilet, locker room, and shower facilities on the basis of sex."
So, Obama's recent directive, and former ones by the Education Department, clearly contradict the law. Yet, the administration has been trying to re-interpret this law to say something it clearly does not for the past two years.
In April of 2014, the Department of Education issued a document claiming that Title IX's sex discrimination prohibition "extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity." It then threatened schools with loss of federal funds if they did not conform to the administration's creative interpretation of the law.
However, when these directives have been challenged in court, the Obama administration has lost virtually every time. According to Sharp, there have been six cases in both state and federal courts, which have looked at whether Title IX extends to gender identity. All but one held that it does not.
The one exception involved a transgender teen who sued the Gloucester County School Board in northeast Virginia for denying her access to the boys' bathroom. A federal appeals court ruled that the Obama administration should be shown deference on its interpretation of Title IX. However, the court did not order the school district to allow the female student to use the male restroom, but instead, sent the case back to the lower court to decide.
So, the issue is far from settled, Sharp says. And, there's no certainty that Obama's decree will withstand the legal challenges it is sure to prompt.
"I think there's still a lot left to be determined on this issue," Sharp said. "And, if you look at what the majority of the courts have held, the clear meaning of what Title IX says, and what a lot of even state attorneys are weighing in on this issue — it's that Title IX means biological sex, not gender identity."
Sharp anticipates that school districts and parents will continue to challenge the Obama administration's directives in court. One such case is the lawsuit the ADF recently filed against the Department of Education and a suburban Chicago public high school on the behalf of 160 suburban-Chicago parents and students. The lawsuit challenges the decision by the Department of Education and Palatine-based Township High School District 211 to allow a transgender student into the girls' locker room. The group contends that the decision "trample(d) students' privacy" rights and created an "intimidating environment." It also claims that the Department of Education's inclusion of gender identity under Title IX is unlawful.
The District 211 case will be decided by the U.S. Court of Appeals for the 7th Circuit, a court that Sharp calls "very strong on privacy issues and also on calling the federal government to account" when it oversteps its authority.
"Regardless of what any judge thinks on LGBT issues, they ought to look at this and see this as an overreach of the federal government," Sharp said. "You can't have an administration going around and completely rewriting the laws on a whim without going through Congress or proper channels."
Eventually, Sharp anticipates that the issue will reach the Supreme Court of the United States (SCOTUS). And, given SCOTUS's ruling on several recent Obamacare cases, he thinks the court will strike down the Obama administration's mandates concerning transgender students in school bathrooms. In all three of the Obamacare cases, SCOTUS maintained that the administration may not override existing laws by presidential fiat or creative interpretation, which is precisely what it is trying to do with its transgender directives.
Just yesterday, SCOTUS vacated a decision by a lower court that required the Little Sisters of the Poor to comply with the healthcare mandate and provide its employees access to contraceptives in violation of the group's religious beliefs. In 2014, the court ruled in favor of Hobby Lobby, upholding the right of family-owned corporations to reject Obama's contraception mandate because of federal law protecting religious freedom. And, in 2012, the court ruled that the administration's mandatory Medicaid eligibility expansion was unconstitutional because it violated state's rights.
"Between (the Little Sisters' case) and Hobby Lobby, and even going back to the first Obamacare case, the majority of justices said, 'You can't threaten to strip away all the states' Medicaid funding because they don't agree with your new expansion on Medicaid. You've rewritten the law without Congress' approval. And now you're holding a loaded gun to the head of these states telling them, 'Do what we say, or else!'" Sharp said. "And, that's exactly what we're seeing here is the administration is threatening all this federal funding out of these states and schools, saying, 'Do what we say, or else we're going to strip away the rest of this funding for your students.' So, I'm hopeful in what we've seen with all these Obamacare decisions that it's a foreshadowing of the courts willingness to reign in an administration that goes beyond its authority."
So, rather than capitulating to an overzealous presidential administration, Sharp encourages states, schools and citizens to fight Obama's decree. The law and legal precedent is on your side, not to mention common sense and your children's right to privacy.