The Chicago Tribune on Saturday ran a story headlined "Administration's push for transgender rights likely to succeed...." Maybe, maybe not. The article is long on rhetoric, but short on substance. And after reading a lawsuit filed by students and parents at Fremd High School in Palatine, Ill., challenging Obama's increasing transgender dicta, I'd say there's a good argument to be made that his mandate for "transgender" rights will fail for a whole bunch of reasons.
First, let's be clear: The administration's new policy is more specific than a mandate for "transgender rights." It's more than a policy affecting just "bathrooms" as it is often portrayed. It's a policy imposed, with the force of law and the threat of withholding a fortune in federal funds, that children born male but who self-define as female be given full access to the girls' bathrooms. It also applies to showers and swimming pool locker rooms, where teenage and pre-teen girls would be nude and consequently are forced to forfeit the right to the constitutionally, legally and historically protected "bodily privacy."
When it comes to unilateral and unconstitutional executive branch action, this takes the cake, just as President Barack Obama's numerous executive orders regarding immigration and Obamacare exceed his authority.
The federal case we'll examine more closely than any mainstream media has bothered to report in detail is Students and Parents for Privacy vs. U.S. Department of Education et al. It was filed in the northern Illinois federal district court by the Chicago-based Thomas More Society and the Alliance Defending Freedom. (It can be viewed in its entirety here.) It was filed, prior to the Obama administration's issuance of a sweeping new policy requiring all public school to give trans, fluid and other gender self-identified children full access to the opposite sex bathroom and locker room facilities.
The suit, filed on behalf of Fremd students and parents, raises numerous plausible legal and constitutional arguments against the Obama administration's blackmailing of the Palatine High School District 211 board into granting transgender "Student A" (a biological male but self defined female) full access to the girls' locker, shower and bath rooms.
Let's go through them. The court is asked to overrule the "agreement" executed between the Education Department and the school district because it:
1. Mandates an unlawful policy.
The Obama administration is using its interpretation of Title IX to redefine "sex" as "gender," to make gender identity discrimination the equivalent of sex discrimination. But, according to the suit, "Nothing in Title IX’s text, structure, legislative history, or accompanying regulations addresses gender identity...." The term “gender identity” does not appear in the text of Title IX or in the regulations accompanying Title IX. Sen. Al Franken (D-Minn.) acknowledged as much when his repeatedly introduced legislation--which always failed--that would protect against "gender identity discrimination" in schools. Title IX itself makes clear that it is defining sex discrimination as traditional biological male and female, using the binary concept of sex consistent with one’s birth or biological sex. Title IX explicitly states that the federal government cannot withhold funds for providing separate living facilities for different sexes, demonstrating congressional intention that the law should respect student privacy, including bodily privacy.
2. Violates the constitutionally protected right to bodily privacy.
Numerous courts, including the Seventh Circuit, have recognized a fundamental right to bodily privacy. This right includes a right to privacy in one’s fully or partially unclothed body. It also includes the right to be free from a state-compelled risk of intimate exposure of oneself to the opposite sex. Bodily privacy is also separately and deeply rooted America's history and tradition, and is implicit in the concept of ordered liberty. Throughout its history, American law and society has had a national commitment to protecting citizens, and especially children, from suffering the risk of exposing their bodies, or their intimate activities, to the opposite sex.
3. Violates the Administrative Procedures Act (APA)
The Education Department's promulgation and enforcement of this new legislative rule are reviewable actions under the Administrative Procedure Act, especially since it could will result in investigative and enforcement action that includes the withholding of millions of dollars in federal funding. The department presents its decisions as final with no other adequate remedy.
The Education Dept. has unilaterally determined that its action in the Fremd case is final, with no other adequate remedy. Yet, the APA directs the courts to overturn the agency's decisions for a number of reasons, such as Congress failing to authorize it to "define or redefine unambiguous terms in Title IX." It has done so because Title IX’s "implementing regulations are not ambiguous in their instruction that a school district may separate restrooms, locker rooms, and shower facilities on the basis of biological sex." The regulations implementing Title IX already state that "schools receiving federal funding may provide separate toilet, locker room, and shower facilities on the basis of sex, [as long as] such facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.” And talk about arbitrary: the department failed to give any explanation for redefining sex." It just cavalierly decreed that the term, “sex,” in Title IX means gender identity.
The APA also requires a specific procedure for agency changes to its regulations, such as publication of the changes in the Federal Register and public hearings to provide "interested parties" an opportunity to comment. A final rule, considering these comments, must include a "concise general statement of the rule's basis and purpose." None of which the department has done, either in the Fremd case or in the Obama's establishing the general policy for all public schools. And, by the way, such changes also require the signature of the president, which wasn't done either.
4. Violates the fundament rights of parents to make decisions about their children.
The suit argues that the Fourteenth Amendment due process clause protects parents' right and duty to "instill moral standards and values in their children, and to direct their education and upbringing." The includes the right "to determine whether, and when, their minor children endure the risk of being exposed to members of the opposite sex in intimate, vulnerable settings like restrooms, locker rooms, and showers." It is not for Obama, or his administration or the school itself to say that children must risk exposure to opposite nudity when their parents object.
5. Creates a hostile environment
Title IX clearly outlaws unwelcome sexual harassment and the creation of a hostile environment on the basis of sex. The girls who are fighting for their privacy are a protected group under the law, but are being subjected to harassment, with the knowledge of school officials. Those officials cannot escape liability for these violations by requiring those girls to remove themselves from the hostile environment (i.e. the locker, shower and bathrooms). The school has told some of the girls that instead of using the locker room to change for physical education class, they may change their clothing in a nurse’s office located on the other side of the school. Ironically, that's exactly what the Obama administration forbade when it came to Student A.
6. Violates the state and federal laws against religious discrimination.
The First Amendment protects against certain government actions that burden the free exercise of religion. Some students and their parents believe that their religion requires them to practice modesty. In order for the government to restrict the free exercise of religion, the Obama administration must demonstrate that the regulation passes the "strict scrutiny" test, in that it furthers a compelling government interest while being narrowly tailored to achieve that interest. And here's an interesting argument. The regulation is not generally applicable because it does not allow all students to use the opposite-sex restrooms, but only students who perceive themselves as a different gender than their biological sex. Maybe unitary bathrooms, locker rooms and showers in schools are next, the direction that San Francisco seems to be heading.
There's much more in the 83-page complaint, but that's enough for now. What's clear is that contrary to a New York Times story, the Obama administration's action does have the force of law. Unfortunately, because the New York Times says it doesn't have the force of law, some journalists will echo the assertion without question. Such as the Tribune's Rex Huppke, who ironically resorts to ridicule by referring to the "uninformed bathroom warriors" who are defending a girl's right to bodily privacy. Uninformed? Who's uninformed?