The Obama administration’s ‘Guidance’ had eliminated the protected legal category of ‘sex’ and replaced it with an individual’s personal identification with the sex role stereotypes culturally assigned based on sex, called ‘Gender Identity’.
Adherents of the ‘Gender Identity’ movement believe that biological sex, and therefore sex-based discrimination, does not exist and that instead, sex-role stereotypes need to be legally enforced, supported, and protected. By eliminating sex as a recognized category the Obama era “Guidance’ allowed male students to occupy formerly protected female showers, locker rooms, and bathrooms, and eliminated the rights of female students to privacy from males in those spaces.
Gavin Grimm, the high school senior whose Title IX lawsuit is scheduled to be heard by the Supreme Court in March, described in a 2016 essay how years of sexism, bullying, and homophobia led to her adopting a belief in ‘Gender Identity’:
“When I was little, I didn’t think of myself as a boy or a girl. I thought of myself as a kid who did what I wanted. When I started school, though, that gender divide became more apparent. I noticed that boys didn’t want to play with me. I had a best friend in elementary school, and one day he just said, “Hey, we can’t hang out any more.” When I asked why, he said, “’Cause you’re a girl.” I was indignant. “What are you talking about?” I asked. “What does that even mean?”
I never, ever, in a million years envisioned myself growing up to be a woman. I don’t think I thought of any alternatives, but I knew for sure that I was not going to grow up and be a woman. When puberty hit, my biggest struggle was not only feeling betrayed by my body, but also the increasing pressure to become a little lady.
It was around this age that my leg hair started growing in — and I did not want to shave it. I loved having leg hair; I thought it was cool! But, my classmates didn’t agree. My mother, of course, put a lot of pressure on me — because I was “blossoming into a young woman” and all that — to conform to feminine archetypes. That caused a lot of conflict in my family relationships. I was a very volatile, angry kid in that time period.
But, I didn’t give up; I just continued refusing to shave or wear dresses. I gravitated towards boys’ clothes. It started slowly: Oh, here’s one Pokémon shirt because I love Pokémon. Soon, I was only shopping in the boys’ section. My mother (and I want to make it very clear that she has come a very, very long way) is Christian. She had a lot of problems with homosexuality, and she perceived me to be a homosexual female because I was very masculine in how I acted and dressed. At one point, she came to me and said, “You’re so angry, and I know why.” I said, “Wait, you do?” And, she said, “You’re a lesbian.”
I was about 11 or 12 at the time. And, I knew I liked girls, but I’d never, ever, ever identified with the term “lesbian” — calling yourself a lesbian means asserting yourself as a woman, and I didn’t want to do that. I wanted to live in that gray area where I didn’t have to say that I was anything. So, the conflict started again. Apparently, being a lesbian doesn’t excuse you from shaving your legs.
I found out about the word “transgender” when I was watching YouTube. I clicked on somebody’s video, and he looked like a girl. Then, I watched another video from, like, two years later — he was a dude! And, you know, I was 12 and thinking, Holy crap. What did he just do? I want to do it!
By the time I was 13, I started questioning things that the Christian Bible considered “sinful.” My body was betraying me more and more, the older I got. It was a horrifying experience — one that I wouldn’t wish on my worst enemy. There’s nothing that I can think of that compares to the emotional and mental anguish. I was bullied a lot for being masculine and for being perceived as a lesbian. I was chubby and I was different. It was a cacophany of bad.
That’s when I finally revisited the idea that maybe male vs. female wasn’t all there was to it. I actually came across a scientific study showing differences in the brains of cis males and trans females — despite both being born with “male” bodies. I thought, Wow, maybe I’m not crazy.”
‘Gender Identity’ doctrine reframes the cultural issue of sexism and misogyny as an individual, personal, medical adjustment issue which eliminates the ability to meaningfully critique or politically address the male supremacist power structure of sex-roles themselves. ‘Gender Identity’ eliminates sex as a recognized category while codifying the roles.
The text of yesterday’s letter withdrawing the Obama administration ‘Gender Identity’ Guidance is as follows in bold:
U.S. Department of Justice
Civil Rights Division
U.S. Department of Education
Office for Civil Rights
February 22, 2017
The purpose of this guidance is to inform you that the Department of Justice and the Department of Education are withdrawing the statements of policy and guidance reflected in:
- Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015; and
- Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016.
These guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.
This interpretation has given rise to significant litigation regarding school restrooms and locker rooms. The U.S. Court of Appeals for the Fourth Circuit concluded that the term “sex” in the regulations is ambiguous and deferred to what the court characterized as the “novel” interpretation advanced in the guidance. By contrast, a federal district court in Texas held that the term “sex” unambiguously refers to biological sex and that, in any event, the guidance was “legislative and substantive” and thus formal rulemaking should have occurred prior to the adoption of any such policy. In August of 2016, the Texas court preliminarily enjoined enforcement of the interpretation, and that nationwide injunction has not been overturned.
In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.
In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.
Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.
This guidance does not add requirements to applicable law. If you have questions or are interested in commenting on this letter, please contact the Department of Education at email@example.com or 800-421-3481 (TDD: 800-877-8339); or the Department of Justice at firstname.lastname@example.org or 877-292-3804 (TTY: 800- 514-0383).
/s/ Sandra Battle
Acting Assistant Secretary for Civil Rights U.S. Department of Education
T.E. Wheeler, II
Acting Assistant Attorney General for Civil Rights U.S. Department of Justice