The Briefing 06-01-16

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The Obama Administration's legal absurdity: Does Title IX require gender blindness or affirmation?

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Whose Title IX rights? The biological female's or the female-identifying biological male's?

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Transcript

The Briefing

June 1, 2016

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Wednesday, June 1, 2016. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

The Obama Administration's legal absurdity: Does Title IX require gender blindness or affirmation?

In recent days, 11 states have filed suit against the United States government. They have filed in federal court in a suit against the Obama Administration’s Department of Justice and Department of Education because of the Administration’s directive handed down on May the 13th that all public institutions that receive federal funding, in particular schools and colleges and universities, must allow persons to use the bathroom that corresponds with their claimed and chosen gender identity. As David Montgomery and Alan Blinder report for the New York Times,

“The Obama administration on Wednesday faced the first major court challenge to its guidance about the civil rights of transgender students in public schools, as officials from 11 states filed a lawsuit testing both the scope of federal anti-discrimination law and the government’s sweeping interpretation of it.”

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Now the New York Times is one of the most influential and one of the most liberal newspapers in the world, and here you have by its reporters an acknowledgment that what the Obama Administration is now seeking to apply is a “sweeping interpretation” of a law that was adopted by Congress back in 1964 and amended in 1972.

Back on the 13th of May the Obama Administration responded to recent legislative actions by the states by handing down what is known as a Dear Colleague letter. That letter was addressed to those who lead academic institutions, both the public schools and public colleges and universities or even private colleges and universities that receive, or cooperate with federal funding. That, we should note, includes any institution that cooperates in federal student aid. The edict from the administration in this Dear Colleague letter said that the institutions must, according to the law adopted by Congress back in 1972, allow persons to use the bathroom of their chosen gender, of their self-identified gender.

Now the thing we need to note, as has so often already been noted, is that in 1972, the LGBT revolution was not even on the screen. And when in 1972, Congress adopted a prohibition against discrimination on the basis of sex; it clearly did not have a gender identity issue, much less the transgender revolution on its mind. The New York Times report says,

“The officials, in states from Arizona to Georgia to Texas to Wisconsin, brought the case in Federal District Court in Wichita Falls, Tex., and said that the Obama administration had ‘conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common-sense policies protecting children and basic privacy rights.’”

Now one of the most interesting things about that second paragraph in the story is the list of the states chosen to be identified here. Eleven states, we are told in the lead paragraph, have filed suit against the Administration, but four specific states are identified here: Arizona, Georgia, Texas, and Wisconsin. What’s important about that listing of the four out of 11 is how the four identify the diversity in terms of the state’s filing a suit: Arizona in the Southwest, Texas stands for itself, Georgia in the Deep South and Wisconsin in the Midwest. That’s an indication of the fact that these 11 states likely will not stand alone. Where they stand right now is unified in outrage at the Obama Administration’s sweeping edict and its interpretation of law, an interpretation of law, we should note, that does as this lawsuit claims—flout the political process—indeed, the Democratic process, and as the suit says runs roughshod over common sense policies protecting children and basic privacy rights.

The story that unfolds in the Washington Post by CNN, National Public Radio, and the New York Times are all very similar in making clear that these states have filed these charges against the Obama Administration and that they have done so at a federal district court in Wichita Falls, Texas. That Court, if appealed, would go to the Fifth U.S. Circuit Court of Appeals in New Orleans and that might set up, indeed almost assuredly will set up, an eventual Supreme Court challenge over this issue. One thing we need to note here is the timeline. Even as the federal courts move through these challenges and cases, in all likelihood President Obama will be long gone from office and his successor very much in place by the time the Supreme Court might have the opportunity to hear this issue. By that time, President Obama clearly believes that the policy will simply have been in place so long that it will be very difficult culturally, constitutionally, and politically speaking to reverse it.

The cultural and legal background and the constitutional importance of this issue was made clear in the pages of National Review in an article by Edward Whelan, who is the President of the Ethics and Public Policy Center there in Washington, D.C. As he describes, and I quote,

“Pushing the transgender agenda through the entire alphabet of the federal bureaucracy has been a high priority for the administration in President Obama’s second term.”

Then he gives us this very important and rare glimpse into the background,

“So it was that in January 2015 an obscure functionary named James A. Ferg-Cadima, in his temporary capacity as acting deputy assistant secretary at the Department of Education, signed his name to a letter and sent that letter to G.G. (and to various transgender activists). In his letter, Ferg-Cadima made two cursory legal claims on behalf of the department. First, he declared that Title IX’s ban on discrimination on the basis of sex includes a ban on discrimination on the basis of gender identity. Second, he asserted that schools that provide “sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes” must “treat transgender students consistent with their gender identity.”

This is a really important article. Ed Whelan here gives us a glimpse into the background of the Obama Administration’s effort to drive this moral revolution through what he describes as the entire alphabet of the federal bureaucracy. And he identifies “an obscure functionary” that goes by the name of James A. Ferg-Cadima as the man who in January 2015 made the argument in the form of a letter even as he was serving as acting deputy assistant secretary in the Department of Education. This gives us a glimpse of how the federal bureaucracy works. But it also tells us something: the Obama Administration was almost assuredly behind this effort. It chose to make this statement through someone whose name is not well known to the United States, but it also shows us how one single federal bureaucrat in Washington, D.C. or elsewhere can hand down a letter that can eventually change the entire culture. That’s a stunning development, and it is one that was exactly not what the Founders of the American Republic had in mind when they established our Constitutional Republic. Whelan goes on to write,

“Ponder for a moment some examples of what Ferg-Cadima’s second claim means for schools that receive federal funding. A young man who says his gender identity is female must be offered a college dormitory room with roommates who are women (irrespective of the wishes of those roommates). An athlete who is biologically male in all respects must be allowed to compete for a position on a women’s sports team if he identifies himself as female. A first-grade girl who thinks she’s a boy can use the boys’ bathroom. And, yes, high-school boys who say they’re transgender girls may use the girls’ locker rooms and showers on the same terms, and at the same time, as the girls do — and vice versa, of course, for girls who say they’re transgender boys.”

But then Whelan writes these words,

“Not surprisingly, this insanity has no plausible basis in Title IX. Let’s assume, for the sake of argument, that Ferg-Cadima is right in his first claim: that Title IX actually forbids discrimination on the basis of gender identity.”

Whelan, a constitutional scholar himself, then writes,

“On any coherent account of what discrimination is, that assumption thoroughly defeats, rather than supports, Ferg-Cadima’s claim that “transgender students” must be treated “consistent with their gender identity.”

It’s a brilliant argument. Edward Whelan is here making the commonsense observation that this federal bureaucrat handed down two absolutely contradictory moral principles– all in service, of course, of the sexual revolution. As Whelan is making the point very clear, the point of discrimination is that one should avoid treating anyone of the same status differently than any other. That means, as he makes clear, that if indeed there are biological males that present themselves as males and biological males that present themselves as females, they should be treated on the same basis and not discriminated against. That would mean, by the way, a defense of single-sex and sex segregated bathrooms on the basis of biological sex. But then, in an absolutely vital conclusion to his essay, Whelan writes, and I quote,

“The foundational premise of the transgender agenda is that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective conception of gender identity is the genuine reality that demands recognition and respect — including the use of wrong pronouns, thus yielding such absurdities.

“That premise, with its disjunction between reality and perception, is a stark illustration of what everyone used to recognize as lunacy. But the Obama administration now claims that federal statutes adopted decades ago embrace and compel that lunacy.

“Under any theory of political accountability, it is appalling that the Obama administration would seek to impose its radical rewriting of Title IX through a bureaucratic diktat. And it is all the more appalling that any judges would be so confused or compliant as to acquiesce in this.”

But listen to his final thunderous sentence,

“But it’s no surprise that for those for whom the concepts of male and female have no core meaning, legal texts don’t either.”

That’s exactly what’s at stake here. It’s a postmodern interpretation of all reality. It’s the argument made straightforwardly and, so far as we can tell, with an absolutely straight face that there is no objective truth– there’s no objective truth when it comes to gender or sex. There’s no objective truth when it comes to male or female, biology doesn’t matter. The objective facts of biology simply have to be now dismissed in terms of the subjective interpretation of an individual’s self-identity. Furthermore, and this is where Edward Whelan make such an important point, for people who don’t really care anymore about male and female as objective realities, we shouldn’t be surprised that they don’t consider words and text such as the text of law or fundamentally the text of the Constitution to have any objective meaning either. It’s all of a piece. Once you accept the postmodern worldview, once you accept a relativistic understanding of all reality, it comes down to how you understand text and interpret those texts. It comes down to how you understand biology and even the existence of objective truth. By the time male and female have lost all objective reality, so has the objective authority of any text, the Bible or the Constitution included.

Whose Title IX rights? The biological female's or the female-identifying biological male's?

Next, we repeatedly look at the inherent contradictions in the transgender revolution, and in the fact that it’s so often packaged as part of an LGBT or LGBTQ–Q for queer or questioning—revolution. But now we need to note that those contradictions are at least being suspected as existing on the left, not only on the right, and amongst some who are proponents of both feminism and the transgender revolution, or who at least are trying to be. As we’ve discussed in recent months on The Briefing, the so-called Seven Sisters, those liberal arts colleges that have traditionally limited their admissions to women, those colleges that have been very much important parts of driving the feminist revolution, find themselves in a very difficult position when they try also to embrace the transgender revolution.

How can you be a women’s only college when you’re no longer even certain what a woman is? That has led to all kinds of admissions and policy gymnastics on the part of those schools. But as Jeannie Suk points out for the New Yorker, the transgender bathroom debate also represents a Title IX crisis, even for those who are entirely supportive, or at least claim to be entirely supportive, of the Obama Administration’s latest ruling. Suk, a professor of law at Harvard, writes,

“This month, regional battles over the right of transgender people to access public bathrooms were elevated to national legal theatre.”

She goes on to describe the dueling lawsuits now being exchanged between the federal government and the various states. She then points to the May 13 directive from the Obama Administration, and she makes the point that it was directly addressed to the North Carolina legislation and, furthermore, that she supports exactly what the Obama administration was trying to do. She writes,

“Quite apart from a possible legal right, it is reasonable to think that the appropriate bathrooms for transgender people to use are ones fitting their gender identities. But the parents’ rhetoric of federal overreach on Title IX is not off base.”

Now here you have a confusing argument. But what’s important to recognize here is that this professor at the Harvard Law School at least sees the contradictions coming. She also understands and acknowledges in this article that the Obama Administration, in seeking to do what she thinks is certainly the right thing, may actually have overextended itself, legally and constitutionally speaking. But then she points to a collision course that is coming. It’s a collision course that is very similar to what we saw in terms of the inherent contradictions between the feminist movement and its understanding of sex and gender and the LGBT movement. But then Suk writes,

“Whether or not the federal government acted unlawfully, it has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms.”

She writes,

“Schools attempting to comply with the federal bathroom policy have at least two possible ways of doing so: allow students to use sex-segregated bathrooms and locker rooms based on their gender identity, or move away from sex segregation of such facilities. The latter, gender-inclusive arrangement, which was in place in my college dormitory more than twenty years ago, is not uncommon on campuses, and a social movement to desegregate at least some portion of bathrooms is growing. Some colleges have made every bathroom on campus open to any gender, and this solution could well become a practical choice at K-12 public schools.”

Now, don’t miss what she’s saying here. Here you have a lawyer at the Harvard Law School saying that if you take the Obama Administration’s directive seriously, as she says we must, there are two and only two ways that schools can legally satisfy the Obama Administration’s interpretation of the law. First is by allowing an individual on the basis merely of gender identification, not biological sex, to use whatever changing area, bathroom, shower, whatever, in terms of their chosen gender identity. Secondly, the only other option available to schools is that they eliminate sex segregated facilities altogether. That would include bathrooms, locker rooms, showers, and changing areas. And then note very carefully that she explicitly says,

“This solution could well become a practical choice at K-12 public schools.”

Have America’s parents figured that out? Here you have a woman teaching at the Harvard Law School, clearly an influential intellectual in America, writing in the New Yorker, telling us that there are really only two options. The first one is to just do what the Obama Administration openly implies, and that is allow access simply on the basis of gender expression and identity, or, secondly, get rid of all sex segregated facilities whatsoever. She writes that that’s already happened in a lot of major colleges and universities, in particular, the liberal colleges such as those in the Ivy League. She says that when she went to college two decades ago, there were already at least some facilities in which young men and young women shared living space, changing areas, bathrooms, and all the rest. That’s not what most parents, I think, even now would want for their young men or young women—that is, for their sons and daughters. But those at least are college-aged young people. What about children as young as five, or for those all the way through high school? Make no mistake. Here you have a Harvard Law Professor saying that the most practical way out of the conundrum is simply to eliminate all sex-segregated facilities, beginning at kindergarten. Now that’s something I think most American parents don’t have in mind. They don’t understand that that is largely inevitable as a practical outcome of the dictate now handed down by the Obama Administration.

But you’ll note we’re not to the contradiction yet. The contradiction comes now,

“Continuing to have segregated bathrooms could also put schools in a bind on Title IX compliance. According to the federal government, a transgender girl who is told to use the boys’ locker room, or even a separate and private stall, instead of the girls’ facility, has a claim that the school is violating Title IX. A non-transgender girl who’s told she must share a locker room with boys may also have a claim that the school is violating Title IX. But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and “emotional strain” should be disregarded. But this week, in a letter, dozens of members of Congress asked the Attorney General and the Secretary of Education to explain why they should be disregarded. The federal government is putting schools in a position where they may be sued whichever route they choose.”

Now from a Christian worldview perspective, there’s something really, really vital to understand here. What we have is the ultimate insanity of what happens when you separate truth and being—that’s something the Christian worldview makes abundantly clear. Furthermore, when you reject a sane and objective moral realism, what you end up with is a confusion that breaks down into this kind of competing claim, this kind of contradiction. So let’s just look at the Obama Administration’s conundrum here. This is where it’s placed all these schools that cooperate with federal funding. This is exactly what’s inevitable when you try to create an entirely new sexual morality. According to the Administration, Title IX requires not only that all claims concerning sex discrimination must be taken seriously, but also sex identity or gender identity discrimination. But here you have a Harvard law professor saying, well look, that could go both ways, and schools could now get sued regardless of which way they try to remedy the situation.

To get to the bottom line here, they’re saying that a school can be sued if it does not allow a biological male identifying as a female to use female-segregated areas. But biological females who also identify as females may say that they feel unsafe with biological males identifying as females who now have access to the very same facilities. Whichever way these schools turn, they’re almost assuredly going to be sued. And as this law professor makes clear, both of the plaintiffs in these cases would have legitimate cause, according to this administration, to sue the schools for failing to comply with a contradictory interpretation of the law.

Now remember, when we started, that the lawsuit filed by these 11 states charged that the Obama Administration had run roughshod over the legal process and had violated the very idea of democracy. But notice how professor Suk ends her article,

“The sense that the Education Department has not looked down the road to consider the conflict is only confirmed by its penchant for announcing bold and controversial rules in letters, rather than through lawful processes.”

Now this is really interesting. When the left politically and culturally in America gets concerned about the Obama Administration running roughshod over the Democratic process, we should all be worried, very worried. And finally, as we are watching the closing months of the Obama Administration with President Obama’s second term soon coming to an end, we can be very well advised this is not the end of the Dear Colleague letters, nor the end of the expansion of federal authority by means of this kind of dictated policy.

Dr. Mohler recording The Briefing