Congress Should Declare Transgender School Issues Matters for the States

President Obama's directive to US public schools saying transgender students must be allowed to use restrooms that match their gender identity, not the sex listed on their birth certificate, is defended by Obama and his spokesman Josh Earnest, who say it’s “not an enforcement action” and was requested by school systems seeking guidance about how to treat transgender students. Yes, but while lacking the force of law, the directive threatens lawsuits or federal funding loss for schools that do not comply. ~~~~~ Before the directive was issued, a federal appeals court ruled a Virginia school board is violating Title IX anti-discrimination laws by barring a transgender boy from using the boys’ restroom, and remanded the case to the lower court for reconsideration of the boy's petition. While the 4th Circuit Court of Appeals has not yet definitively ruled, the 2-1 ruling of its three-judge panel will give impetus to transgender access to restrooms, locker rooms and other spaces segregated by gender. North Carolina is in the 4th Circuit, so the decision will influence the lawsuit challenging the HB2 "bathroom law" in North Carolina. The Departments of Justice and Education have both said that under Title IX, a federal law banning school sex discrimination, schools must allow transgender students to have unfettered access to bathrooms and locker rooms that match their gender identity. But a growing number of schools are defying the mandate, resulting in court actions like NC's Governor McCrory lawsuit. ~~~~~ While Obama defends his directive as non-binding advice, the 4th Circuit is addressing the real legal question : are transgenders a protected class under the Civil Rights Act. Its preliminary answer was 'yes.' Other federal courts disagree. ~~~~~ So does Reverend Bill Owens, president of the Coalition of African-American Pastors, who says Obama’s assertion that single-sex bathrooms discriminate against gender-confused individuals in the same way that blacks experienced discrimination in the US is a “gross insult” to all who fought for equality for African-Americans : “There is simply no relation between the struggles that Black Americans have faced and the desire of a tiny minority group to violate the dignity and privacy of women and girls. To suggest some sort of equivalence is a gross insult to all of those who marched with Dr. King and faced fire hoses and hatred in the name of equality.” ~~~~~ Two US Catholic bishops have also denounced Obama’s order. Bishop Richard Malone of Buffalo and Archbishop George Lucas, both committee chairmen of the US Conference of Catholic Bishops, cite church teaching restated by Pope Francis in April in his apostolic exhortation Amoris Laetitia : "The guidance issued...by the US Department of Justice and...of Education that treats ‘a student’s gender identity as the student’s sex’ is deeply disturbing. [It] fails to address a number of important concerns and contradicts a basic understanding of human formation so well expressed by Pope Francis: that ‘the young need to be helped to accept their own body as it was created.’" The bishops said no student should ever feel unsafe but said the order curtails “more just and compassionate approaches....It unfortunately does not respect the ongoing political discussion at the state and local levels and in Congress, or the broader cultural discussion, about how to address these sensitive issues. Rather, the guidance short-circuits those discussions entirely.” ~~~~~ Dear readers, The Founders said the federal government exists to settle disputes between the States. But what was not spelled out in the Constitution as a federal power was reserved to the States -- that is the 10th Amendment cornerstone of Republicanism and conservatism that separates us from Obama and Democrats, who believe power flows to the federal government, in violation of the Constitution. Congress must declare that transgender school questions are reserved to the States. Otherwise, federal courts will continue to side with Democrats in their 50-year expansion of federal power.