Judge: Obama Overreaching With Title IX Emphasis on Transgender Rights

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By Emily Zanotti | 1:24 pm, August 22, 2016

A federal judge who blocked President Obama’s edict forcing public schools to accommodate transgender students says the administration is misusing Title IX and skirting traditional rule-making conventions in its zeal to promote transgender rights.

In a 38-page ruling released Sunday night, U.S. District Judge Reed O’Connor of the Northern District of Texas put a temporary hold on the Obama administration decree that schools across the country must allow transgender students to use the bathroom or locker room of their choice.

More than a dozen states, including Texas, have sued the administration, claiming the policy usurps local control over education policy and puts students’ privacy at risk.

Judge O’Conner was especially critical of the administration’s use of Title IX in making its case for the policy. Title IX requires that school “facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”

In his ruling, O’Connor took issue with the idea of extending Title IX beyond the realm of traditional male-female distinctions.

“Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex,” O’Conner writes.

The new policy envisioned by the Obama administration, O’Connor mused, seems to put the privacy rights of non-transgendered students at risk.

While recognizing that transgender rights now require consideration, Judge O’Conner said that the Department of Education has the means to enact specific policies relating to transgender students’ use of facilities, but bypassed them in this case. In his order, he instructed the department to follow those traditional rule-making procedures — asking the public for input on the change, studying how the change would impact the “youngest student” potentially affected by the policy, and utilizing the DoE’s standard, formal rule-making process.

While the order is only temporary, the decision is a setback for the Obama Administration, which has vastly expanded its use of Title IX to enforce changes in the education sector via the Department of Education.

In addition to ordering schools to accommodate transgender students, the administration also has suggested that Title IX covers campus sexual assault investigations under its “sexual harassment” provisions. That determination, issued in a 2011 “Dear Colleague” letter, asked colleges to abide by a lower, “preponderance of the evidence” standard when investigating allegations of sexual assault so that students would not feel uncomfortable making rape claims to administrators.

Texas Attorney General Ken  Paxton described the states’ lawsuit against the Obama Administration as a quest to prevent this kind of Title IX reinterpretation and expansion. “This president is attempting to rewrite the laws enacted by elected representatives of the people, and is threating to take away federal funding from schools to force them to conform,” Paxton told local media outlets.

The Administration is expected to appeal the decision.