On February 22, the Trump administration released a statement rescinding previous Obama administration guidance dealing with students who identify as transgender.

Contrary to almost all the news reporting on this story, the real question addressed by the new administration’s guidance is not (at least not directly), “Which restrooms or locker rooms should students who identify as transgender use?”

Instead, it is something much simpler — “Who gets to decide?”

The answer that President Trump’s administration has now given is also simple: “Not us. Not the federal government.”

Getting Title IX Right

The two Obama administration documents that have now been rescinded — a 2016 “Dear Colleague” letter to every school district in the country, and a lesser-known “opinion letter” issued January 2015 — asserted a specific interpretation of a specific federal law.

“Title IX” is common shorthand for “Title IX of the Education Amendments of 1972” — a federal law which prohibited discrimination on the basis of “sex” in any school that receives federal funds (as all do).

The Obama administration argued that discrimination based on “sex” includes discrimination based on “gender identity;” and that failing to treat students in accord with their self-perceived “gender identity” (rather than their biological sex) in all school activities (including restroom and locker room assignments) constitutes such “discrimination.”

This position is legally untenable. Title IX was enacted by Congress, and signed into law by President Nixon, in 1972. It strains credulity to suggest that the legislative intent of Congress — 45 years ago — was to authorize biological males to use female facilities, and vice versa. The logical conclusion is that “sex” in Title IX is a reference only to one’s biological sex at birth.

If Congress wanted to expand the reach of Title IX to encompass “gender identity” as well as “sex,” Congress could amend the law to do so. Until now, they have chosen not to. No president simply has the authority under our Constitution to effect such an expansion unilaterally. President Trump’s decision to withdraw the Obama guidance should be welcomed by anyone who believes in limited government or in the rule of law — regardless of how they feel about transgender issues.

Legal Issues With “Gender Identity” Protection

Making “gender identity” a protected category under non-discrimination laws or policies would raise concerns beyond the question of bathrooms and locker rooms. Will staff be punished for inadvertently referring to a transgender student by the wrong, non-preferred, pronoun? Will fellow students have their freedom of speech or religion infringed upon, by being punished for expressing the view that God created human beings male and female, or that biological sex is a more valid indicator of maleness or femaleness than subjective “gender identity?”

The issue of sex-separated facilities or programs is an important one. Even future Supreme Court Justice Ruth Bader Ginsburg, defending the proposed Equal Rights Amendment to the U.S. Constitution to prohibit sex discrimination under the law, wrote in the Washington Post in 1975 that “the equality principle” is compatible with having facilities separated on the basis of sex, declaring, “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.”

Common sense, however, tells us that the reason we have separate facilities for men and women, boys and girls in the first place is not because their gender identities are different, but because their anatomy is different.

Privacy Needs

Court precedents on physical privacy have established that it is a right which includes the right not to expose one’s nude or semi-nude body to someone of the opposite biological sex, and similarly not to be exposed involuntarily to the nude or semi-nude body of someone of the opposite biological sex. The Obama guidelines would have cast this privacy right to the winds, in favor of an unrestricted preference for gender identity over biological sex.

Many observers express concern about the needs of students who identify as transgender — as they should. But what about the concerns of Kaeley Triller Haver — a rape survivor who showered in her underwear because of the trauma she had endured? What about the female student in Illinois who now wears her gym clothes to school under her regular clothes — and then puts the regular clothes back on over the gym clothes, without showering — in order to avoid exposing herself to a biological male who was given permission to use the girls’ locker room?

Providing single-user, gender-neutral restrooms or changing facilities is a reasonable accommodation that could protect everyone’s concern for privacy and safety — yet it has been rejected as discriminatory by transgender activists and the Obama administration.

The Trump administration policy will open the door for such accommodations to ensure that the legitimate needs and concerns of all students are met. This is far preferable to a “one-size-fits-all,” top-down solution imposed by the federal government. (For more from the author of “Trump Returns Authority Over School Transgender Policies to States and Localities” please click HERE)

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The Trump administration acted Wednesday night to fix the Obama administration’s unlawful “gender identity” school policy and return authority to parents and teachers in the states.

Civil rights officers in the Department of Justice and the Department of Education issued a joint letter saying the administration was rescinding the policy, which had required schools to allow transgender students to use the restrooms, locker rooms and similar facilities of their choice—or face loss of federal funds.

In the letter, they said the Obama mandate did not show “due regard for the primary role of the states and local school districts” in making education policy.

The Trump administration is doing the right thing in correcting Obama’s unlawful overreach, which imposed a one-sided solution on all 50 states. Parents and teachers in local schools now can work to find win-win solutions that protect the dignity, privacy, and safety of all students.

For years, the Obama administration unilaterally had redefined bans on “sex” discrimination to include “gender identity.”

The problem came to a head May 13, when Obama’s Justice and Education departments sent a “Dear Colleague” letter to our nation’s schools, informing them that “both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX,” a 1972 law prohibiting sex discrimination in federally funded schools.

With this decree, the Obama administration directed all schools to allow “students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.”

Schools were told they had to allow students access to bathrooms, locker rooms, dorm rooms, and hotel rooms for overnight field trips based entirely on the self-declared gender identities of their students.

On Aug. 21, U.S. District Judge Reed O’Connor ruled the Obama administration’s attempt to redefine sex was unlawful, and blocked the decree from going into effect.

O’Connor held that it “cannot be disputed that the plain meaning of the term sex as used … following passage of Title IX meant the biological and anatomical differences between male and female,” and he placed a nationwide injunction on the administration’s guidance to schools.

The Justice Department, under Attorney General Loretta Lynch, appealed this ruling Oct. 20.

But on Feb. 10, with Jeff Sessions as the nation’s new attorney general, the Justice Department withdrew that motion for a stay and cancelled the scheduled oral arguments.

The Trump administration rescinded the Obama guidance saying officials would interpret the word “sex” in Title IX to mean “gender identity.” Instead, the administration will allow parents and teachers to work together in local schools to find nuanced solutions that address the needs of everyone.

Wednesday night’s moves signaled a change in position that could have a significant impact on the Justice Department’s controversial Title IX lawsuit against North Carolina’s Public Facilities Privacy & Security Act (known as HB2), which the Trump administration inherited.

The actions also could affect a Title IX gender identity case, currently set for oral argument at the Supreme Court next month, that depends in large part on the Department of Education’s position.

Dignity, Privacy, and Safety Concerns

Last week at The Heritage Foundation, a panel of women explained the many policy problems with “gender identity” laws.

As one of them said, “when gender identity wins, women always lose.”

The panelists—a rape survivor, a lesbian, a feminist activist, a stay-at-home mom, and a conservative—explained how people who identify as transgender should be free to live as they want, but that the law shouldn’t therefore eliminate women-only spaces or redefine what it is to be a woman.

While we must be sensitive to the dignity, privacy, and safety concerns of people who identify as transgender, that is not a reason to ignore the dignity, privacy, and safety concerns of everyone else.

Unfortunately, the Obama-era policies were entirely one-sided. They favored the concerns of people who identify as transgender while entirely discounting the concerns of others.

Safe Spaces for Women, a group that “provides survivors of sexual assault with care, support, understanding, and advice,” recently submitted an amicus brief to the Supreme Court explaining how gender identity policies can negatively impact sexual assault survivors:

Safe Spaces for Women has a strong interest in ensuring that the voices of women who have suffered sexual abuse are heeded when policies are made that may directly affect their physical, emotional, and psychological well-being. This includes policies that require educational institutions covered by Title IX to admit to female showers, locker rooms, and restrooms biological males who identify as female. While Safe Spaces for Women bears no animus toward the transgendered community, it is deeply concerned that … survivors of sexual assault are likely to suffer psychological trauma as a result of encountering biological males—even those with entirely innocent intentions—in the traditional safe spaces of women’s showers, locker rooms, and bathrooms.

The brief goes on to note that the guidance from the Obama administration was issued “without giving those affected a voice in the process. … improperly circumvent[ing] the notice and comment process when that process was needed most.”

Likewise, Kenneth V. Lanning, a 40-year veteran law enforcement officer who specialized in sex crimes for the FBI at Quantico for 20 years, explains the problem with “gender identity-based access policies” for sex-specific intimate facilities.

Lanning says “the problem with potential sex offenses is not crimes by transgendered persons,” but rather “offenses by males who are not really transgendered but who would exploit the entirely subjective provisions” of such policies “to facilitate their sexual behavior or offenses.” Lanning explains that:

Allowing a man, based only on his claim to be [a] transgendered woman, to have unlimited access to women’s rest rooms, locker rooms, changing rooms, showers, etc. will make it easier for the type of sex offense behavior previously described to happen to more women and children. Such access would create an additional risk for potential victims in a previously protected setting and a new defense for a wide variety of sexual victimization.

Indeed, as The Daily Signal previously noted, such sexual victimization already is occurring by men who have disguised themselves as women.

What to Do Now

Wednesday night’s actions by the Justice and Education departments will lead to good policy outcomes, which is why it should not be limited to Title IX.

The Trump administration should extend this decision to every area where federal agencies have imposed new “gender identity” rules on the American people without basis in law, without congressional authorization, without considering legitimate countervailing concerns, and without the support of the American people.

Congress should make such administrative actions permanent by reintroducing and passing H.R. 5812, the Civil Rights Uniformity Act, which clarifies that the term “sex” does not mean “gender identity” for the purpose of interpreting civil rights statutes. This would have the benefit of undoing the past and current abuses of Title IX, as well as preventing future abuses of other civil rights law.

Passing the Civil Rights Uniformity Act would ensure that unelected bureaucrats and judges would not get to unilaterally reshape policy affecting women and girls. It would allow schools to continue providing separate bathroom and locker room facilities and sports teams based on biological sex, not gender identity.

It also would address other unilateral Obama-era “gender identity” reinterpretations in health care, emergency shelters, housing, and employment. At the same time, such legislation would properly leave states and private entities entirely free to provide nuanced, sensitive, and reasonable accommodations of people who identify as transgender.

Up until last year’s prime-time interview of the celebrity then known as Bruce Jenner, few Americans ever had had a conversation about transgender issues. It’s a conversation we need to have.

But the Obama administration tried to shut down these discussions before they’ve even begun. The Obama administration attempted to force a one-size-fits-all policy on the entire nation rather than allow parents and teachers and local schools the time, space, and flexibility to find solutions that work best for everyone.

The Trump administration has taken the first steps to correct this.

While the Obama administration attempted to rewrite law to impose a federal “gender identity” policy on the entire nation, the Trump administration is respecting federalism, local decision-making, and parental authority in education.

For most Americans, concerns related to transgender students are a new reality. Rather than follow the Obama administration’s rush to impose a top-down solution on the entire country, the Trump administration is allowing the American people to have these conversations, consider all the relevant concerns, and make policies that will best serve all Americans.

Good for them. (For more from the author of “Trump Right to Fix Obama’s Unlawful Transgender School Policy” please click HERE)

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