Our federal government has decided to issue a letter of guidance to our public school’s on transgender access to bathrooms. The joint letter from the education and justice departments was sent to schools Friday with guidelines to ensure all students “can attend school in an environment free from discrimination based on sex.”
Realize that while they can ‘issue’ such a letter, it carries absolutely no authority. This is yet another example of federal overreach through the Executive Branch as yet another couple of bureaucratic and unconstitutional cabinets move to usurp power and authority from the Legislative Branch. However, time and again Title XI keeps getting tossed into the mix as if it has any real bearing in the issue of transgenderism and school bathrooms.
“No person in the United States 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.” [Public Law No. 92‑318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681–1688]
The first person to introduce Title IX in Congress was its author and chief Senate sponsor, Senator Birch Bayh of Indiana. At the time, Bayh was working on a number of issues related to women’s rights, including the Equal Rights Amendment.
As they were having some difficulty getting the ERA out of committee, the Higher Education Act of 1965 was on the floor for reauthorization, and on February 28, 1972, Bayh introduced the ERA’s equal education provision as an amendment.
In his remarks Bayh said, “We are all familiar with the stereotype of women as pretty things who go to college to find a husband, go on to graduate school because they want a more interesting husband, and finally marry, have children, and never work again. The desire of many schools not to waste a ‘man’s place’ on a woman stems from such stereotyped notions. But the facts absolutely contradict these myths about the ‘weaker sex’ and it is time to change our operating assumptions.”
“While the impact of this amendment would be far-reaching”, Bayh concluded, “it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs—an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work.”
Bayh said absolutely nothing about ‘transgender,’ though his bill did state ‘sex,’ which is defined biologically defined by the presence of the XX (female) or the XY (male) genotype in somatic cells.
In 2014, guidelines were issued by the U.S. Department of Education stating that transgender students are protected from sex-based discrimination under Title IX, and instructing public schools to treat transgender students consistent with their gender identity in single-sex classes, so that a student who identifies as a transgender boy is allowed entry to a boys-only class, and a student who identifies as a transgender girl is allowed entry to a girls-only class. The memo states in part that “…students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.
There is nothing in the United States Constitution that gives the federal government the authority to delegate power to the federal Department of Education or the Department of Justice to create law or even the suggestion of it.