- The Washington Times - Thursday, May 26, 2016

Critics contend that by weaponizing Title IX on multiple fronts, the Obama administration is pitting the law against itself.

The administration’s most recent interpretation of the civil rights law, handed down earlier this month, compels public schools nationwide to permit bathroom and locker room access on the basis of gender identity, rather than biological sex.

But in 2011, the U.S. Department of Education’s Office of Civil Rights interpreted Title IX to define as “sexual harassment” any “unwelcome conduct of a sexual nature.” Under this interpretation, some legal scholars have speculated that asking a girl out on a date could constitute “sexual harassment” — so long as it is “unwelcome.”

Joseph Backholm, director of the Family Policy Institute of Washington, said the statute’s competing readings are on a collision course with one another.

“The idea that harassment could come in the form of a proposal for a date, but not in the form of being exposed to someone’s genitalia against their will, is a hard thing to reconcile,” Mr. Backholm said. “Most people that you ask would certainly say they are more troubled by someone of the opposite gender undressing next to them in a locker room, than being asked out, even aggressively, in public.”

Hypothetically, he said, a female college student could file a Title IX complaint against her university, should it comply with the Obama administration’s new interpretation of Title IX. In other words, universities would be violating Title IX by enforcing Title IX, he said.

Indeed, “sexual harassment” is so broadly defined under the old interpretation of the civil rights law, that a Title IX complaint was levied against Northwestern University professor Laura Kipnis after she wrote an article criticizing what she called “sexual paranoia” in higher education.

Mr. Backholm is not the only one to notice the apparent inconsistencies in the Obama administration’s directives. The possibility that the interpretations contradict one another has been noted across the ideological spectrum, from the Rush Limbaugh radio program to a female law professor writing in the pages of the New Yorker.

Denouncing a Charlotte Observer editorial — which held that school-age girls must overcome their “discomfort” of seeing “male genitalia” for the purpose of accommodating transgender students — Mr. Limbaugh last week contrasted progressive nonchalance about transgender bathroom access to the fiery rhetoric surrounding campus sexual assaults.

And in a legal analysis for the New Yorker on Tuesday, Harvard Law professor Jeannie Suk said there is “a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males.” She said such concerns cannot be so easily dismissed under the former interpretation of Title IX.

“If a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment,” she wrote.

Ms. Suk chided the Education Department for having “heightened anxiety about campus sexual assault,” but flippantly dismissing concerns about mixing the sexes in bathrooms and locker rooms.

“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,” she concluded.

At the announcement of a lawsuit against North Carolina earlier this month, Vanita Gupta, who heads DOJ’s Civil Rights Division, defended the most recent interpretation of Title IX as barring discrimination on the basis of “gender identity,” even though the law does not mention the phrase.

“The Department of Justice has for some time now made clear that sex discrimination includes discrimination against transgender people — that is, discrimination based on gender identity,” she said. “There is nothing radical or even particularly unusual about the notion that the word ‘sex’ includes the concept of ‘gender.’”

But Dr. Paul McHugh, former psychiatrist-in-chief at Johns Hopkins Hospital, said the Obama administration’s interpretation of Title IX not only belies logic, but it repudiates science.

“Gender identity is a very slippery term, and it’s become synonymous with sex, and obviously it isn’t,” Dr. McHugh said. “The terms for ‘sex’ are men and women, male and female; for ‘gender,’ it’s masculine and feminine. We don’t have a masculine room and a feminine room; we have a men’s room and a women’s room.”

“It doesn’t matter whether you think and feel that ‘I’m kind of like a girl, or I’m kind of like a guy’ — you’re still what they recognized you as when you were born,” he said.

But the apparent contradictions do not end there. Mr. Backholm said the notion that “sex” and “gender identity” are synonymous also goes against the very idea of transgenderism, which holds that the two concepts are distinct and can be in opposition to one another.

“What’s funny about it is, all the law talks about is ‘sex,’ and they’re trying to redefine sex, when the whole premise of this question is that sex and gender are different — sex is biological and gender is not,” he said. “They’re contradicting their own narrative about the issue.”

Pointing to several cases currently working themselves out, he said the tall task of sorting out Title IX’s mixed signals will ultimately come down to the courts.

Although several federal courts have ruled against such an interpretation of Title IX, the 4th U.S. Circuit Court of Appeals held last month that a Virginia school board violated Title IX by trying to accommodate a transgender teen with unisex, single-stall restrooms in which to change and go to the bathroom. The school board is appealing the decision.

The U.S. Department of Justice also sued the state of North Carolina over a law regulating public facilities on the basis of biological sex, saying the law violates Title IX and other federal antidiscrimination laws.

And a group of parents and students this month filed a lawsuit against the U.S. Department of Education and a Chicago public school district, after a transgender student was permitted access to the girls’ locker room. The group said the Obama administration’s interpretation of Title IX violates the privacy rights of the students.

“I think ultimately when this gets into court, the Obama administration’s interpretation is going to be tossed aside, because it’s completely baseless,” Mr. Backholm said.​

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