Continue reading...Mitch smith and Monica Davey wrote:Federal education authorities, staking out their firmest position yet on an increasingly contentious issue, found Monday that an Illinois school district violated anti-discrimination laws when it did not allow a transgender student who identifies as a girl and participates on a girls’ sports team to change and shower in the girls’ locker room without restrictions.
Education officials said the decision was the first of its kind on the rights of transgender students, which are emerging as a new cultural battleground in public schools across the country.
Here is the letter that the Department of Education published in support of their position.
- The OCR is not arguing that sex segregated locker rooms are a per se violation of Title IX (P. 9).
- Nor is it arguing that a school that chooses to segregate locker facilities on the basis have a general duty to allow persons to use the facilities on the basis of their gender identity. Instead, the DoE seems to be arguing is that because the student is allowed access to other facilities reserved for girls, such as sports teams and restrooms (pp. 10-11)
The news article plainly states that this letter is the "first of its kind". Apparently, this idea never occurred to the previous seven presidential administrations. (President Richard Nixon signed Title IX.) It does seem odd that the Obama administration would even take a side. I could understand if United States Supreme Court precedent squarely held that there may be some circumstances where Title IX requires a school to allow students of one physical sex to use facilities reserved for those of the opposite sex. But the letter does not cite any Supreme Court cases in favor of its position. Furthermore, schools have broad discretion to make accommodations for students with rare needs and to make exceptions to sex segregation of its programs and facilities. There is no appellate court precedent cited in the letter even suggesting that because the school could have done a better job in accommodating students with rare needs, its current accommodations violate Title IX.
Finally, this of course could be simplified by critics to simple slogans, causing the public to turn against this course of action and the administration. I see no advantage, and many disadvantages, in the administration taking a side in this dispute.
The student in question has a lawyer. A better solution would be to simply let the student's lawyers argue with the school's lawyers in court, and let the judiciary decide this legal question. The administration has nothing to gain by getting involved, or by pushing a position for which it can not even cite Supreme Court cases in support thereof.