Great Lakes Justice Center’s Call to Protect School Bathrooms Answered

At the Great Lakes Justice Center truth matters. Therefore, on January 26, 2017, the Center formally requested the new Administration to rescind statements of policy and guidance, published by the previous administration, concerning access to public school bathrooms and showers. These official statements held that prohibitions of discrimination on the basis of “sex” in Title IX required local schools to require access to sex-segregated facilities based not on one’s biological sex, but on one’s self-determined gender identity. In other words, if a man says he identifies as a girl, he must be given access to the girl’s bathroom or shower at your local public school.

We are happy to report that the new Administration just withdrew the statements of policy and guidance implemented by the previous administration. Here is a link to the government’s welcome action:

http://apps.washingtonpost.com/g/documents/national/departments-of-education-and-justice-roll-back-transgender-student-protections/2344/

Nothing in the Constitution empowers Government Education bureaucrats in Washington D.C. to make education policy for your local public school. The Administration’s action properly moves the debate, therefore, to the state and local school level of government where it belongs.

In addition to calling on the Administration to withdraw the statements of policy and guidance published by the prior Administration, the Justice Center represents Christian public school teachers in the bathroom/ shower access case currently before the United States Supreme Court.

The full text of the letter from the Great Lakes Justice Center asking the Administration to withdraw its previous statements of policy and guidance follows:

U.S. Department of Education

Office for Civil Rights
400 Maryland Avenue, SW
Washington, D.C. 20202
Electronic Mail: ocr@ed.gov

January 26, 2017

To the U.S. Department of Education, Office for Civil Rights:

The Great Lakes Justice Center sends this letter asking the U.S. of Department of Education to rescind its opinion letters issued on January 7, 2015 and May 13, 2016.

On December 14, 2014, political activist and attorney Emily T. Prince, Esq. sent your office a letter regarding the bathroom policy at a high school in Gloucester County, Virginia. The letter sought for an application of Title IX of the Education Amendment of 1972. In response to this inquiry, the U.S. Department of Education issued a letter on January 7, 2015 declaring that schools should not construe Title IX as allowing schools to separate student’s bathroom facilities on the basis of sex when a student asserts that his/her biological sex fails to current match his/her “gender identity.”

On May 13, 2016, the U.S. Department of Education then sent a letter to every Title IX recipient in the county. The letter detailed a mandate requiring compliance or face the loss of federal funding:

1. A school may no longer require a student to use the bathroom, locker room, or shower of the opposite sex if the student or his/her parent or guardian asserts a “gender identity” different from his/her sex.

2. The assertion by the student or his/her parent or guardian does not need to be supported by a psychological diagnosis, a medical diagnosis, or any evidence of treatment.

3. Students who, as a consequence of this new policy, no longer feels comfortable using the bathroom, locker room, or shower of their own sex for reasons of privacy, modesty, sincerely held religious beliefs, or safety concerns, may be relegated to a separate facility.

4. Yet, no school can require that a student whose “gender identity” does not match his/her biological sex use a separate facility. Only non-transgendered students will be required to use a separate facility.
The U.S. Department of Education’s interpretation of Title IX runs afoul to the language of Title IX and the constitutional protections for state and local school boards, parents, and students.
Title IX provides:

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 . . . .
20 U.S.C. § 1681(a). Notably, Title IX recognizes the biological and physiological differences between men and women. Title IX also importantly provides that,
Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.
20 U.S.C. § 1686.

Likewise, Title IX’s implementing regulation, 34 C.F.R. § 106.33, expressly allows for schools to designate separate facilities based upon sex:
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
Id. The terms or concept of “gender identity,” “transgenderism,” and “transsexuality” appear nowhere in Title IX, its enacting regulations, or its legislative history. In sum, Title IX: 1) requires that schools not discriminate on the basis of sex to receive Federal funding; 2) clearly states that separate “toilet, locker room, and shower facilities” on the basis sex are permissible; and 3) includes no provisions, legal or otherwise, pertaining to the special treatment of “gender identity,” “transgenderism,” or “transsexuality.” The policy, unilaterally enacted through the U.S. Department of Education’s letters, misinterprets Title IX. Further, the department seeks to punish a school board in Virginia who has accommodated and respected the privacy of all the children it serves.

The implications of the interpretation of Title IX put forth by the U.S. Department of Education in the above referenced letter constitutes an egregious overreach of the federal government’s power and endangers the privacy rights and constitutional freedoms of administrators, teachers, parents, and students throughout the country.

Enclosed please find an Amicus Brief penned by the Great Lakes Justice Center that details how this policy was enacted without authority and how it ignores the fundamental right of parents to control and direct the upbringing of their children; ignores the procedural due process requirements; ignores the First Amendment freedoms of students, faculty, and staff whose valid religious, moral, political, and cultural views necessarily conflict with a political agenda that denies biology; ignores the fundamental constitutional liberty and equal protection interests of students, teachers, and administrators who define their personal identity by their religious beliefs; endangers the freedoms of Christian Americans who cannot support or promote “transgenderism” based upon their sincerely held religious beliefs; and diminishes student privacy and safety.

The Great Lakes Justice Center calls upon the U.S. Department of Education to rescind its unlawful interpretation of Title IX and issue a letter clarifying that Title IX indeed allows schools to have separate toilets, showers, and locker rooms for boys and girls, as has been the law for over the last forty years.

Sincerely,
GREAT LAKES JUSTICE CENTER

Written by 

William (@Prof.WWJD) serves as President of Salt & Light Global and Editor-in-Chief of SLG Witness. Together, he and his bride Marilyn home educated their children. Prof. Wagner holds the academic rank of Distinguished Professor Emeritus (Law and Constitutional Governance) where, as a tenured professor, he received the Beattie Award for Teaching Excellence. A frequent speaker at world conferences, Professor Wagner has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression. Professor Wagner’s writing is published a number of articles, books, and other publications, including a national best seller (#1in its category). As lead amicus counsel a variety of matters before the United States Supreme Court, he authored briefs on behalf of various Christian organizations. He also authored written testimony, evidence, and briefs in such forums as the Swedish Supreme Court, the U.S. Congress, and the U.K. Parliament. He has further addressed many executive, legislative, parliamentary, and judicial audiences throughout the world, and presented at various diplomatic forums including the United Nations Human Rights Council in Geneva. Professor Wagner previously served in the United States Courts as a federal judge. Prior to his appointment on the federal bench, he served as a legal advisor and the chief American diplomat for the Department of Justice at an American Embassy in Africa. There he led a diplomatic mission charged with strengthening good governance and the rule of law. His international service also includes an appointment by the United States Courts as Commissioner to Canada. Over the years, Professor Wagner has provided international assistance to the justice sector institutions of numerous countries on five continents. Professor Wagner also served as Senior Assistant United States Attorney, litigating hundreds of federal cases and serving as chief of appellate litigation for the Office of the United States Attorney. Prior to serving in the Justice Department, Professor Wagner served as legal counsel in the United States Senate and as chief counsel to the Senate Judiciary Committee of the Michigan legislature. As chief counsel, he supervised all legislative issues involving the separation of powers, due process, and other protections of individual rights and liberties, including the right to free expression and the free exercise of religious conscience. Professor Wagner received the post-doctoral Danforth Fellowship in Law after earning his J.D. in 1986. He serves, or has served, on the executive governing boards of a number of international and national ministries. Soli Deo Gloria.