Betsy Devos Flushes Obama Era Bathroom Policy

Betsy DeVos, Sec. of Education

by Merrie Soltis:  Great idea. But don't expect an end to the great transgender bathroom wars - or any other Title IX abuses.

For a year now, the Department of Education has been studying the issue of transgender students and school restrooms. Now, they have announced that they will no longer "investigate or interfere" if transgender students complain about being barred from the restroom of their gender identity.

This change hinges on the actual wording of the Title IX legislation. In case you've ever wondered, here is the Title IX law in its entirety:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

That's it. That's the whole law. But the key word here is "sex." Schools are legally prohibited from discriminating on the basis of "sex," not gender. So, the current Dept of Ed is claiming that the law does not offer protection to students who feel that they are being discriminated against on the basis of "gender."

There are some exceptions listed after that. Religious schools are exempt if "the application of this subsection would not be consistent with the religious tenets of such organization." Military institutes and schools with single sex admissions (like the Seven Sisters), are exempt. Organizations such as The Boy Scouts and Girl Scouts, fraternities and sororities, and beauty pageants are all exempt. The law even provides a specific exemption for father-daughter dances.

It's such a simple law really. When it was passed in 1972, there was no controversy because everyone agreed that female students should be treated equally to male students. That's what the law states.

Here's what Title IX DOESN'T say:

Title IX does not state that every school must have the same number of male athletes as female athletes.

Title IX does not empower colleges to hold tribunals for students accused of felony sexual assault instead of reporting such crimes to the legal authorities.

Title IX does NOT provide for the censure of professors who express unpopular opinions.

And Title IX certainly does not state that a male can use the girls' bathroom if he identifies as female.

So, how in the world did such an innocuous little law morph into the major legal nightmare it has become? In a word: Democrats.

When the law was introduced in Congress, Congressswoman Edith Green recognized that it would have far reaching implications. But she deliberately hid this from the debate. She discouraged supporters from even lobbying for the bill. "I don't want you to lobby. Because if you lobby, people will ask questions about this bill, and they will find out what it would really do." The law was signed by Richard Nixon in 1972, but several years were allowed for implementation. Then, under the Reagan/Bush administrations not much happened. But during the Clinton administration, head of the Department of Education's civil rights office Norma Cantul made "proportionality" the standard for Title IX compliance. Schools had a hard time determining if they were compliant or not, hence the arrival of the "Title IX Compliance Officers" on college campuses and the expansion of the higher ed bureaucracy. Eventually, schools figured out that the easiest way to stay compliant was to insure an equal amount of male and female athletes in relation to the student body. In other words, if 53% of your students are women, then you'd better make sure 53% of your student athletes are women. The good result of that was an increase in women participating in sports. The downside was the elimination of hundreds of male sports teams to achieve "proportionality."

But eliminating college wrestling was just the beginning. In 2011, the Obama administration (once again through the civil rights office) issued its infamous "Dear Colleague letter," which instructed all colleges and universities receiving federal funds (which thanks to the student loan program means ALL OF THEM) to use the lowest possible standard of proof, a preponderance of evidence, in sexual assault cases, discouraged the cross-examination of accusers, allow accusers to appeal not-guilty findings, and accelerate these new kangaroo trials within 60 days. There was no explanation of how any of this could be legally mandated under Title IX. And yet, in effect this became the de facto new federal law.

Not satisfied with destroying college sports and due process, the Obama administration then proceeded to screw up school bathrooms. In May 2016, the Obama administration issued guidance stating Title IX guarantees transgender students can use restrooms and other school facilities matching their gender identity.

The current Department of Education under President Trump and Betsy Devos are attempting to roll back these abuses of Title IX legislation. Devos previously instructed schools to turn over sexual assault cases to the police. And now the department has announced that they won't continue to force boys into the girls bathroom. But don't expect liberal to roll over on this issue. State legislatures continue to debate these "bathroom bills." Individual school districts have enacted their own policies. Democrats will no doubt push for federal legislation. And there is at least one case heading to the Supreme Court.

Besides, there's a massive industry built around college administrations and Title IX practices. Those bureaucracies won't just go away without a fight. The bathroom wars will continue for the foreseeable future.
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Merrie Soltis (@ConservaCatGal) is a conservative blogger and editor at The Resurgent.

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