Gender Identity Policies in Schools: What Congress, the Courts, and the Trump Administration Should Do

classroom 3The Heritage Foundation 23 March 2017
Key Takeaways
1 Federal agencies have tried to force schools to grant access to sex-specific intimate facilities based on self-declared gender identity instead of biological sex.
2 Students, particularly women and girls, have valid concerns about privacy and safety in intimate spaces, as well as about the equality of women under law.
3 The law should specify that “sex” does not mean “gender identity,” and local schools should devise solutions that respect the privacy and safety of all students.

Schools found win-win solutions, such as the creation of single-occupancy restrooms and changing facilities for students who identify as transgender while retaining girls’ and boys’ rooms for biological girls and boys, but activists attacked these commonsense compromise policies as “transphobic.”

…. Schools facing this issue were sensitive to the feelings of embarrassment and discomfort that students who identify as transgender would face were they to be required to share bathrooms or locker rooms with persons of the same biological sex. At the same time, they recognized that students of the other biological sex also had dignity, privacy, and safety concerns of their own.

The solution that schools generally settled upon was to give the student who identified as transgender limited access to other facilities—such as faculty facilities, the teacher’s lounge, or the faculty locker room—or to provide single-occupancy restrooms for any student that did not feel comfortable using a multiple-occupancy intimate facility. They found a way to accommodate both the student who identified as transgender and the rest of the students. These nuanced solutions addressed all involved and reflected their dignity, privacy, and safety concerns.

Gloucester County Public School Board v. G.G.
On June 11, 2015, a female student who identifies as male, G.G., sued the Gloucester County, Virginia, School Board because it would not allow G.G. access to the boys’ restroom. The district had allowed such access until complaints by several families prompted it to implement a policy by which only biological girls could use the girls’ room, only biological boys could use the boys’ room, and any student could use one of three single-occupancy bathrooms, which the school built specifically to accommodate students who identify as transgender. This arrangement, which accommodated students who identify as transgender while also protecting the privacy rights of other students, was not good enough for G.G., who sued the school district for alleged unlawful sex discrimination on the basis of gender identity. A district court ruled in favor of the school district, but on April 19, 2016, the U.S. Court of Appeals for the Fourth Circuit overturned that decision and ruled against the district. In determining the meaning of sex discrimination under Title IX, the court held that it was bound to defer to an unpublished guidance letter from the OCR’S acting assistant deputy director, which specified that “sex” for Title IX purposes included “gender identity.” The school district appealed the decision, and on August 3, 2016, the U.S. Supreme Court issued a stay on the circuit court’s opinion that halted implementation of the guidance for the upcoming school year. …On February 22, 2017, the Trump Department of Education formally rescinded the Obama-era OCR’s “gender identity” guidance, and on March 6, 2017, the U.S. Supreme Court vacated the ruling by the circuit court and sent the case back to that court to be reconsidered in light of the recent Trump Administration action.

Unlawful Agency Redefinition of “Sex” as “Gender Identity”
In 1972, when Congress passed Title IX of the Education Amendments, no one thought that “sex” meant “gender identity.” The phrase “gender identity” did not exist outside of some esoteric psychological publications, and the word “gender” had been coined only recently in contradistinction to sex. The Obama Administration simply attempted to rewrite federal law as it wished the law had been written originally. To this day, the term “sex” is not ambiguous and therefore cannot legitimately be redefined by executive branch agencies to mean “gender identity.”

It is entirely reasonable for people not to want to see the opposite sex in a state of undress, regardless of their gender identity. Likewise, it is entirely reasonable for people not to want to be seen in a state of undress by people of the opposite sex, regardless of their gender identity. The Alliance Defending Freedom (ADF) explains this long-running American practice:
In the late 1800s, as women began entering the workforce, the law developed to protect privacy by mandating that work place restrooms and changing rooms be separated by sex. Massachusetts adopted the first such law in 1887. By 1920, 43 of the (then) 48 states had similar laws protecting privacy by mandating sex-separated facilities in the workplace. Because of our national commitment to protect our citizens, and especially children, from the risk of being exposed to the anatomy of the opposite sex, as well as the risk of being seen by the opposite sex while attending to private, intimate needs, sex-separated restrooms and locker rooms are ubiquitous in public places.
This concern is particularly heightened for minors, especially as children go through puberty and rightly desire bodily privacy. “Specifically,” adds the ADF, “minors have a fundamental right to be free from State compelled risk of exposure of their bodies, or their intimate activities, such as occur within restrooms and locker rooms, to the opposite biological sex.”
This is also of particular concern to women who have been victims of sexual abuse. Seeing a naked male body, particularly the genital area, can function as a traumatic trigger. Whether the naked male body they suddenly see in front of them belongs to a man who identifies as a woman (and has not had surgery) or a man who identifies as a man (and has not had surgery) is of no moment to survivors of sexual abuse who are caught in that situation.
Safe Spaces for Women, a group that “provides survivors of sexual assault with care, support, understanding and advice,” recently submitted an amicus brief to the Supreme Court explaining how gender identity policies can negatively affect such women:
Safe Spaces for Women has a strong interest in ensuring that the voices of women who have suffered sexual abuse are heeded when policies are made that may directly affect their physical, emotional, and psychological well-being. This includes policies that require educational institutions covered by Title IX to admit to female showers, locker rooms, and restrooms biological males who identify as female. While Safe Spaces for Women bears no animus toward the transgendered community, it is deeply concerned that…survivors of sexual assault are likely to suffer psychological trauma as a result of encountering biological males—even those with entirely innocent intentions—in the traditional safe spaces of women’s showers, locker rooms, and bathrooms.
The brief goes on to note that the Obama Administration issued its guidance “without giving those affected a voice in the process…improperly circumvent[ing] the notice and comment process when that process was needed most.”
As the brief further notes:
Women who have suffered sexual assault are especially sensitized to the risks posed to their physical and emotional wellbeing by allowing biological males to enter the traditional safe spaces of women’s showers, locker rooms, and restrooms. Moreover, these women are vulnerable to suffering emotional trauma as a result of encountering biological males in those spaces—including those with entirely innocent intentions.

Maya Dillard Smith, former head of the American Civil Liberties Union of Georgia, resigned from her position with the ACLU after it came out on the wrong side of this issue:
I have shared my personal experience of having taken my elementary school aged daughters into a women’s restroom when shortly after three transgender young adults over six feet with deep voices entered. My children were visibly frightened, concerned about their safety and left asking lots of questions for which I, like many parents, was ill-prepared to answer…. Despite additional learning I still have to do, I believe there are solutions that can provide accommodations for transgender people and balance the need to ensure women and girls are safe from those who might have malicious intent.

Kenneth V. Lanning, for example, is a veteran of 40 years in law enforcement who specializes in preventing and solving sex crimes. A former FBI Supervisory Special Agent, he was assigned to the Behavioral Science Unit and the National Center for the Analysis of Violent Crime at the FBI Academy in Quantico for 20 years. Lanning has consulted on thousands of sex crimes and has published an essential book, Child Molesters: A Behavioral Analysis, now in its fifth edition.
Lanning identifies the problem that “gender-identity based access policies” (GIBAPs) create for sex-specific intimate facilities: “the problem with potential sex offenses is not crimes by transgendered persons. The problem…is offenses by males who are not really transgendered but who would exploit the entirely subjective provisions of a GIBAP…to facilitate their sexual behavior or offenses.”
As Lanning explains:
[A]llowing a man, based only on his claim to be [a] transgendered woman, to have unlimited access to women’s rest rooms, locker rooms, changing rooms, showers, etc. will make it easier for the type of sex offense behavior previously described to happen to more women and children. Such access would create an additional risk for potential victims in a previously protected setting and a new defense for a wide variety of sexual victimization.81
[O]bjective standards are also important to effective law enforcement. Law enforcement officers and prosecutors will be less likely to record, investigate, or charge indecent exposure or peeping offenses in a GIBAP environment, because there is no objective standard for determining whether someone born a male can lawfully be present in a women-only facility. It would be more difficult to prove lascivious intent when self-reported gender identity drives access rights, and easier to accuse law enforcement personnel of discrimination. This is made even more difficult when that self-reporting [gender identity] need not be corroborated in any way whatsoever.
And just as fear of being accused of bigotry or discrimination can make law enforcement personnel less likely to investigate or enforce sex crime statutes, it can make women less likely to report certain forms of sexual misconduct, such as peeping and indecent exposure:
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