Trump Right to Fix Obama’s Unlawful Transgender School Policies

President Donald Trump talks to reporters on board Air Force One as he arrived to speak at his "Make America Great Again Rally" at Orlando-Melbourne International Airport in Melbourne, Fla., Saturday, Feb. 18, 2017.

By Ryan Anderson Published on February 23, 2017

White House press secretary Sean Spicer said Wednesday that the Trump administration will fix the Obama administration’s unlawful “gender identity” school policy, and return authority to parents and teachers in the states.

The Trump administration is doing the right thing in correcting President Barack Obama’s unlawful overreach, which imposed a one-sided solution on all 50 states. If it acts as expected, parents and teachers in local schools can work to find win-win solutions that protect the dignity, privacy and safety of all students.

For years, the Obama administration unilaterally had redefined bans on “sex” discrimination to include “gender identity.”

The problem came to a head May 13, when Obama’s Justice and Education departments sent a “Dear Colleague” letter to our nation’s schools, informing them that “both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX,” a 1972 law prohibiting sex discrimination in federally funded schools.

With this decree, the Obama administration directed all schools to allow “students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.”

Schools were told they had to allow students access to bathrooms, locker rooms, dorm rooms and hotel rooms for overnight field trips based entirely on the self-declared gender identities of their students.

On Aug. 21, U.S. District Judge Reed O’Connor ruled the Obama administration’s attempt to redefine sex was unlawful, and blocked the decree from going into effect.

O’Connor held that it “cannot be disputed that the plain meaning of the term sex as used … following passage of Title IX meant the biological and anatomical differences between male and female,” and he placed a nationwide injunction on the administration’s guidance to schools.

The Justice Department, under Attorney General Loretta Lynch, appealed this ruling Oct. 20.

But on Feb. 10, under new Attorney General Jeff Sessions, the Justice Department withdrew that motion for a stay and cancelled the scheduled oral arguments.

Based on Spicer’s comments, it appears that the Trump administration will clarify that the word “sex” in Title IX does not mean “gender identity,” and that the Trump administration will not interpret it as if it does. The administration will allow parents and teachers to work together in local schools to find nuanced solutions that address the needs of everyone.

Today’s comments also signal a change in position that could have a significant impact on the Justice Department’s controversial Title IX lawsuit against North Carolina’s Public Facilities Privacy & Security Act (known as HB2), which the Trump administration inherited. It also could affect a Title IX gender identity case, currently set for oral argument at the Supreme Court next month, that depends in large part on the Department of Education’s position.

Dignity, Privacy and Safety Concerns

Last week at The Heritage Foundation, a panel of women explained the many policy problems with “gender identity” laws.

As one of them said, “when gender identity wins, women always lose.”

The panelists — a rape survivor, a lesbian, a feminist activist, a stay-at-home mom and a conservative — explained how people who identify as transgender should be free to live as they want, but that the law shouldn’t therefore eliminate women-only spaces or redefine what it is to be a woman.


While we must be sensitive to the dignity, privacy and safety concerns of people who identify as transgender, that is not a reason to ignore the dignity, privacy and safety concerns of everyone else.

Unfortunately, the Obama-era policies were entirely one-sided. They favored the concerns of people who identify as transgender while entirely discounting the concerns of others.

Safe Spaces for Women, a group that “provides survivors of sexual assault with care, support, understanding, and advice,” recently submitted an amicus brief to the Supreme Court explaining how gender identity policies can negatively impact sexual assault survivors:

Safe Spaces for Women has a strong interest in ensuring that the voices of women who have suffered sexual abuse are heeded when policies are made that may directly affect their physical, emotional, and psychological well-being. This includes policies that require educational institutions covered by Title IX to admit to female showers, locker rooms, and restrooms biological males who identify as female. While Safe Spaces for Women bears no animus toward the transgendered community, it is deeply concerned that … survivors of sexual assault are likely to suffer psychological trauma as a result of encountering biological males — even those with entirely innocent intentions — in the traditional safe spaces of women’s showers, locker rooms, and bathrooms.

The brief goes on to note that the guidance from the Obama administration was issued “without giving those affected a voice in the process. … improperly circumvent[ing] the notice and comment process when that process was needed most.”

Likewise, Kenneth V. Lanning, a 40-year veteran law enforcement officer who specialized in sex crimes for the FBI at Quantico for 20 years, explains the problem with “gender identity-based access policies” for sex-specific intimate facilities.

Lanning says “the problem with potential sex offenses is not crimes by transgendered persons,” but rather “offenses by males who are not really transgendered but who would exploit the entirely subjective provisions” of such policies “to facilitate their sexual behavior or offenses.” Lanning explains that:

Allowing a man, based only on his claim to be [a] transgendered woman, to have unlimited access to women’s rest rooms, locker rooms, changing rooms, showers, etc. will make it easier for the type of sex offense behavior previously described to happen to more women and children. Such access would create an additional risk for potential victims in a previously protected setting and a new defense for a wide variety of sexual victimization.

Indeed, as The Daily Signal previously noted, such sexual victimization already is occurring by men who have disguised themselves as women.

What to Do Now

Today’s comments by President Donald Trump’s press secretary will lead to good policy outcomes, which is why it should not be limited to Title IX.

The Trump administration should extend this decision to every area where federal agencies have imposed new “gender identity” rules on the American people without basis in law, without congressional authorization, without considering legitimate countervailing concerns, and without the support of the American people.

Congress should make such administrative actions permanent by reintroducing and passing H.R. 5812, the Civil Rights Uniformity Act, which clarifies that the term “sex” does not mean “gender identity” for the purpose of interpreting civil rights statutes. This would have the benefit of undoing the past and current abuses of Title IX, as well as preventing future abuses of other civil rights law.

Passing the Civil Rights Uniformity Act would ensure that unelected bureaucrats and judges would not get to unilaterally reshape policy affecting women and girls. It would allow schools to continue providing separate bathroom and locker room facilities and sports teams based on biological sex, not gender identity.

It also would address other unilateral Obama-era “gender identity” reinterpretations in health care, emergency shelters, housing and employment. At the same time, such legislation would properly leave states and private entities entirely free to provide nuanced, sensitive and reasonable accommodations of people who identify as transgender.

Up until last year’s prime-time interview of the celebrity then known as Bruce Jenner, few Americans ever had had a conversation about transgender issues. It’s a conversation we need to have.

But the Obama administration tried to shut down these discussions before they’ve even begun. The Obama administration attempted to force a one-size-fits-all policy on the entire nation rather than allow parents and teachers and local schools the time, space and flexibility to find solutions that work best for everyone.

The Trump administration appears to be taking the first steps to correct this.

While the Obama administration attempted to rewrite law to impose a federal “gender identity” policy on the entire nation, the Trump administration is respecting federalism, local decision-making and parental authority in education.

For most Americans, concerns related to transgender students are a new reality. Rather than follow the Obama administration’s rush to impose a top-down solution on the entire country, the Trump administration is allowing the American people to have these conversations, consider all the relevant concerns, and make policies that will best serve all Americans.

Good for them.


Copyright 2017 The Daily Signal

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  • Conservator

    Thank God that some sanity has returned on this topic. As a school administrator I have dealt with this issue and our school provided reasonable accommodation for that student. Everything was fine. Under the Obama order we would have been forced to allow a biological male in the female restrooms. Of course, on our community college campus this would have been a possible danger to the transgender male because the women had already threatened to take things in their own hands if he did not stay out of their restroom.

  • Gary

    lgbtq people have no dignity because they are lgbtq. Perverts have no dignity. And they should not be protected in any way. One of the reasons there are so many now who identify as lgbtq is because they are protected and treated as if what they are is a legitimate choice.

  • Autrey Windle

    I am surprised to read that there is this Safe Spaces group, but am not surprised that they are so soft-spoken and soft on substance of the real criminal permissiveness of all this garbage. It is time to get rid of this title nine nonsense. I do not remember who wrote this entitlement but I remember when it happened and knew no good would come of it. WOMEN DO NOT NEED THIS KIND OF ATTENTION TO BE EQUAL! These babying entitlements actually set women back a thousand years. I would join a group like the women the Conservator commenter spoke about who were ready to take matters of men in the ladies room into their own hands. I still can’t shake the image of my blind friend who wasn’t safe to go in the Starbucks ladies room because another friend went in first only to find a man in the small bathroom. If my friend had gone in and been assaulted I would be in jail for murder. Is this really what the alphabet inciters want?; to turn natural men and women into murderers and haters?; YOU BET THAT IS EXACTLY WHAT THEY WANT! Well, if not for God, in my case, they would be winning. I am not so far away from being a Texas heathen that I don’t go red-headed Texan on certain provocative idiots. Only Jesus reigns me in but these nuts might think twice that maybe there are one or two heathens left that don’t know God doesn’t allow retribution…

  • Gary

    This is the loss of a battle for the sodomites in their war against morality.

  • Nicholas

    This is definitely a great start. That mandate was federal government overreach into an area that it should have never gone.

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