Obama bullied schools into multi-sex bathrooms

Arkansas and nine other states recently filed a lawsuit challenging the Obama administration’s directive forcing public schools to open single-sex bathrooms, locker rooms and shower facilities to members of the opposite sex. To date, fully half of the states in this nation are standing up to oppose this directive. Why?

The answer is simple. This directive is an example of unlawful executive action and inappropriate federal overreach into local and state issues. If the President can get away with what he has done, then separation of powers, checks and balances and the rule of law are truly nothing more than empty phrases.

Title IX, originally passed by Congress in 1972, says no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Because nearly all local public schools across the country receive federal funds, Title IX basically applies to every public school. In recent years, President Obama and others have wanted to add “gender identity” as a prohibited category of discrimination alongside sex in Title IX. Since 2007, numerous bills have been introduced into and debated by Congress to amend Title IX to add “gender identity” to the statute. Those bills have all failed, meaning they did not have the necessary support from the people’s elected representatives.

Frustrated by the people’s will and checks and balances, President Obama simply changed the law himself as he has done many times before. He directed his agencies to begin “interpreting” the word “sex” in Title XI as including the term “gender identity” — even though everyone knows that “sex” and “gender identity” are two different concepts. As part of this scheme, the Department of Education sent letters to every local school district nationwide warning that schools will be in violation of Title IX if they don’t let children use the bathroom of their professed gender identity regardless of their biological sex. This is despite Congress specifically stating that nothing in Title IX should “be construed to prohibit” schools “from maintaining separate living facilities for the different sexes.”

Moreover it is despite a decades-long acknowledgment by the Department of Education that Title IX allows schools to “separate toilets, and shower facilities on the basis of sex.”

The bullying and threatening letters also suggest schools would violate Title IX if they require proof of gender identity — for example, parental involvement or a statement from a doctor — from a student. If taken seriously, as the letters must be because of the threat of loss of federal funding, this means a high school or middle school could not prevent a group of boys from using the same locker room as the girls in their gym class if the boys suddenly decided one day to profess a female gender identity. Whatever the suggested upside of such a policy for transgender students, it is a recipe for invasions of privacy, bullying, sexual harassment and sexual assault. And if the same theory is to be applied to statutes governing public restrooms — locations we know are frequented by pedophiles — the consequences might even be worse. As the chief law enforcement officer of my State, I vehemently oppose the creation of circumstances that invite such dangers.

The heartbreaking thing is that it seems as if transgendered students are being used as pawns by this administration to further a broader political and legal agenda. In Arkansas, local school districts have worked to provide reasonable, dignified, respectful solutions for students who are transgendered.

There was no problem, until the President manufactured one.

Rutledge is the 56th Attorney General of Arkansas. Elected on Nov. 4, 2014, she is the first woman and first Republican in Arkansas history to be elected to the office. Follow her on Twitter @AGRutledge

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