BLOGAfter the Election: The Path to Protecting Student Privacy

By Gary McCaleb Posted on: | December 23, 2016

The end of 2016 is upon us, and I pray that with the onset of 2017 we will we see the end of one of 2016’s most misguided federal court decisions.

That decision came on April 19, 2016 when the U.S. Court of Appeals for the Fourth Circuit deferred to a single bureaucrat’s misinterpretation of federal law and in so doing, re-wrote a key anti-discrimination law—so that a law which once protected women’s access to educational opportunities now is used to violate girls’—and boys’—bodily privacy.

Of course, we all remember at least the basic elements of the American system of separated powers: Congress makes law, courts interpret what Congress enacts, and the executive branch faithfully enforces the law. So how does one bureaucrat step into judicial robes and have his interpretation of the law gain the same weight as a federal judge’s opinion?

The answer is found in a principle that in some situations, seems sensible: over the years, federal courts developed the “deference” doctrine, which comes in several flavors but at bottom, means that a federal judge may defer to an executive agency’s sensible interpretation of the law when it is reasonable and the relevant law (or regulations) in play are ambiguous when applied to a given situation.

This makes sense when an agency has unique expertise regarding highly complex, fact-specific legal issues, such as when an individual becomes disabled under a health care law, or what levels of radiation are appropriate when transporting hazardous materials. But it makes no sense at all for any court to defer to a bureaucrat’s misguided notion of what “male” and “female” mean.

But that’s just what happened in the Fourth Circuit when it decided the G.G. v. Gloucester County School Board case, where a young female student perceived herself to be a boy, and demanded that the school affirm that perception—particularly by authorizing her to use the boys’ restroom facilities.

The law at issue—Title IX—was enacted in 1972 to assure that women had full access to federally-funded educational opportunities, and forbids irrational sex discrimination almost across the board in such situations. But, recognizing that sometimes there is good reason to separate the sexes, a federal regulation was issued, authorizing schools to provide sex-specific locker rooms, showers, and restrooms, given the physical differences and sensitivities between the two sexes.

Despite the clarity of Title IX, which speaks of “one sex” and the “other sex,” which can mean only male and female, the federal Department of Education proclaimed the regulation ambiguous because it did not say how sex was determined when a student is born of one sex but believes themselves to be the opposite sex.

Enter the bureaucrat – Acting Deputy Assistant Secretary for Policy for the Department of Education’s Office of Civil Rights – who, in the midst of the G.G. lawsuit, pens an unpublished letter opining that when a school separates the sexes for an otherwise valid reason (like keeping boys out of the girls’ locker room), then a “school generally must treat transgender students consistent with their gender identity.”

In other words, it doesn’t matter if a student is really a male; it’s his misperception of sex that counts, and misperception trumps chromosomes and anatomy.

What this reading of the law does is actually re-write the law. Sex is determined by the chromosomes linked through conception, is objectively discerned at (or thanks to sonograms, even before) birth, and is binary—male or female. But gender identity is very different—it cannot be established by objective observation but only by a student’s report of their self-perception; it is fluid and comprised of many “genders” across a vague continuum. The concepts are incompatible, and a result of rewriting the law is exactly what is at issue in G.G.—a court ordering a girl to use the boys restrooms, without regard to the manifold privacy issues that arise from mixing the sexes in such a private facility.

The good news for 2017 is that the Supreme Court of the United States will hear this case, possibly as early as March, and there is a new Administration coming in which may well decide to retract the Department of Education’s utterly misguided misinterpretation of Title IX.

With the privacy of so many students at risk, this coming year should restore basic biology to the understanding of male and female under Title IX, and with that, protect the privacy of millions of students across the United States. It cannot come a moment too soon.

Gary McCaleb

Senior Counsel, Vice President of the Center for Family Values

Gary McCaleb serves as senior counsel with Alliance Defending Freedom, where he is vice president of the Center for Family Values.

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