“That’s the good thing: As a president I can do whatever I want.” Those are President Obama’s words. He may have meant it as a joke, but it’s true enough: He, or any president, can do whatever he wants, even unwise things—provided they are legal.
And that’s the problem with the president’s effort to shape transgender policies for schools and workplaces across the country: He has rewritten laws originally penned by Congress and those rewrites are incompatible with real laws in the federal code. Obama’s transgender diktats are another case of his overreaching presidency, which deserves more attention on the campaign trail.
Title VII of the 1964 Civil Rights Act makes it illegal for employers to discriminate invidiously on the basis of race, color, religion, sex, or national origin. And Title IX of the Education Amendments of 1972 prohibits invidious discrimination on the basis of sex in federally funded education programs and activities.
In those statutes “sex” identifies a protected class defined only in terms of one’s biological sex, male or female. In its work over the years on other matters concerning discrimination, Congress has never understood “sex” in any other way than the sex someone is born with. Under Title IX, which permits institutions to differentiate intimate facilities by sex, schools have provided separate toilets, locker rooms, and shower facilities on the basis of sex. By no means has that been regarded as discriminatory.
Obama, however, has found the law of sex discrimination too constraining. And so, working with his aides but not with Congress, he has rewritten it. Under Obama’s unilateral “law,” sex is no longer a question of the biological categories of male and female, but of the gender one identifies with. And discrimination can occur when a school divides its bathrooms according to biological sex, failing to take gender identity into account.
The administration has written a batch of new rules and interpretations designed to advance its transgender agenda. Thus the Justice Department now holds that Title VII’s prohibition of sexual discrimination in employment “encompasses discrimination based on gender identity, including transgender status.” Relatedly, the Equal Employment Opportunity Commission, which shares Title VII enforcement responsibility with the Justice Department, has said regarding “bathroom access rights for transgender employees” that the statute’s prohibition of invidious discrimination on the basis of sex applies to “gender identity.” Employers that fail to allow employees to use the bathroom and other intimate facilities of their choosing could land in legal trouble—for having discriminated on the basis of “sex,” now understood to be gender identity.
The Occupational Safety and Health Administration has published “guidance” for employers regarding restroom access for individuals who identify with the sex opposite their own. “All employees,” says OSHA, “should be permitted to use the facilities that correspond with their gender identity,” which is “internal” and may be “different from the sex they were assigned”—yes, assigned—”at birth.” Other agencies can be expected to provide similar “guidance” as the administration pushes the country to adopt its transgender policies.
A sign of the administration’s commitment to its agenda came last month when the Education and Justice departments told school administrators across the country that they must allow transgender students to use the bathroom and locker facilities of their choosing. So it is that a student whose biological sex is male but who identifies as a girl may now use the facilities for girls. Girls who feel like boys may head to the bathroom for boys. Failure to comply may result in legal action against a school and also a loss of federal funds—roughly $1,100 per pupil.
Led by Oklahoma attorney general Scott Pruitt, 11 states have filed a lawsuit contesting the legality of Obama’s transgender project. “Obama’s rewriting of Title VII and Title IX is wholly incompatible with Congressional text,” they argue in their complaint. “Absent action in Congress,” the administration “cannot foist these radical changes on the nation.”
The litigation raises fundamental questions about separation of powers and federalism, about whether the nation is governed by the rule of law or the arbitrary rule of men. These questions deserve an airing in this year of presidential decision, yet neither of the major-party nominees is likely to address them in any critical way. Certainly not Hillary Rodham Clinton, who styles herself a progressive and can be expected to continue in the Obamian habit of ruling through executive action. And then there’s Donald Trump, who has actually lauded Obama’s unilateralism and seems to regard it as a precedent he might follow in pursuing his political goals.
At least there are a few Republican members of Congress—Mike Lee and Ben Sasse and Speaker Paul Ryan come to mind—who have challenged the legality of Obama’s overreach. May they continue to do that, and may, too, enough voters in the right states grasp the importance of retaining Republican majorities in Congress. They at least would be in position to check the new executive should she or he try—Congress and the Constitution be damned—to make up rules and unmake inconvenient laws.
