In G.G., the U.S. Court of Appeals declined to interpret for itself Title IX of the Education Amendments Act of 1972 and its 1975 implementing regulation authorizing schools to have restrooms, showers and locker rooms separated by sex. Instead, over the dissent of Judge Paul Niemeyer, the appellate panel held that it must defer to the interpretation of the Office for Civil Rights at the Department of Education ("OCR"). It therefore upheld OCR's diktat that anatomical boys who psychologically identify as girls must be permitted to use intimate facilities ordinarily reserved for girls (and vice versa). G.G. is an anatomical female who identifies as male.
The Supreme Court blocked the lower court's order from going into effect pending the resolution of this case, but has not yet agreed to decide the case.
In their brief, Heriot & Kirsanow state that OCR is "an administrative agency run amok." (p.2.) They further state OCR's so-called "interpretation" of Title IX of the Education Amendments Act of 1972 and the relevant regulation promulgated under the signature of President Gerald Ford in 1975 is not an interpretation at all. Rather, it is an effort to bypass the actual law and force schools to comply with the policy preferences of unelected bureaucrats.
Title IX bans sex discrimination and nothing else. The relevant regulation is a dispensation, not a command: Out of an abundance of caution, it allows (but does not require) schools to separate students by sex for restrooms, showers and locker rooms, even though cases like Brown v. Board of Education had found separation to be inherently unequal in the context of race.
It is doubtful that members of Congress had ever heard of the terms "transgender" or "gender identity" (although they were likely familiar with transsexuals, since the term "sex change operation" was much in the news during that period). But if they had heard those terms, it would have been as a contrast with the term "sex." A few years before Title IX was enacted, one activist, Virginia Prince, an anatomical male who lived as a woman, used these terms this way in the underground newspaper Transvestia:
"I, at least, know the difference between sex and gender and have simply elected to change the latter and not the former. If a word is necessary, I should be termed a 'transgenderal.'"
Virginia Prince, Change of Sex or Gender, 10 Transvestia 53, 60 (1969), quoted in Richard Elkins & Dave King, The Transgender Phenomenon 82 (2006).
According to the Heriot-Kirsanow brief, because the law does not forbid schools from assigning students to intimate facilities, they are free to do so if they want to. But they cannot be commanded by OCR to do so. It states, "OCR's one-size-fits-all diktat ties the hands of school administrators who otherwise would have options in ensuring that transgendered students as well as other students are treated fairly and compassionately." (p. 16.) It further states:
"Dealing with a transgender student can be a delicate matter. For example, sometimes, in a local school administrator's judgment, the best thing may be to do exactly what OCR now insists upon: Let him use the intimate facilities assigned to the sex he identifies with. Sometimes the students who must share these facilities with a member of the opposite sex do not mind.
But in many cases, this solution will cause serious problems. The affected students may be traumatized, and their trauma matters, too. If the transgender student himself is relatively indifferent and the members of his actual sex are supportive, the best thing may be to have him remain with them. In yet other cases, if members of his same sex (but opposite gender) are not accepting or if, despite their good will, he feels embarrassed by having to undress or shower in their presence, having him use an individualized facility or a facility set aside for faculty may be the best solution. Every case is different."
A decision from the Supreme Court on whether to take the Gloucester County School District case may come as early as mid-October. Many other friend-of-the-court (or "amicus curiae") briefs have also been filed. More may be filed today, since today is the deadline.
Heriot & Kirsanow are founding members of the New American Civil Rights Project, an organization of civil rights experts and scholars whose web site is www.newamericancivilrightsproject.org.
To view the original version on PR Newswire, visit:http://www.prnewswire.com/news-releases/civil-rights-commissioners-acting-in-their-private-capacities-urge-supreme-court-to-decide-transgender-restroomshowerlocker-room-case-300337949.html
SOURCE New American Civil Rights Project