"The federal government should not force teenage girls to change with teenage boys, even if those teenage boys somehow believe themselves to be girls."
Today, Gail Heriot and Peter Kirsanow, members of the U.S. Commission on Civil Rights (USCCR), sent a letter to Representative Trent Franks (R-AZ), Chairman of the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice.
They expressed concern about the Department of Education's Office of Civil Rights (OCR) efforts to force an Illinois high school to allow a transgender student to change in the girls' locker room.
OCR's actions are based on the premise that they are protecting the civil rights of the student with gender dysphoria and that not to do so would be a violation of Title IX.
Heriot and Kirsanow point out that,
OCR's actions mangle Title IX.
Title IX prohibits discrimination on the basis of sex.
Student A is biologically and anatomically male.
OCR is interpreting Title IX as prohibiting discrimination on the basis of what these days is commonly referred to as "gender."
OCR is acting as if Student A is a member of the female sex, but Student A is an intact male.
If the school district is discriminating against him by forbidding him from changing in front of teenage girls, then it is discriminating against all the teenage boys at the school by forbidding them from doing so. And Title IX's implementing regulations specifically provide that covered institutions may maintain separate restroom and toilet facilities for the two sexes.
Heriot and Kirsanow further stated that,
"It is clear OCR is not going to restrain itself. It appears to have an agenda that exceeds the scope of authority conferred by Congress by a very wide margin. It is going to continue to coerce school districts by threatening to withhold federal funding until they all agree to fall in line. The federal government should not force teenage girls to change with teenage boys, even if those teenage boys somehow believe themselves to be girls. It is up to Congress to act and forbid OCR from enforcing Title IX in a manner unsupported by its plain language."
In addition to their service on the USCCR, Heriot is a professor of Law at the University of San Diego. Among her areas of expertise are civil rights, employment law, product liability, remedies and torts. Kirsanow is a lawyer in Cleveland, Ohio specializing in labor and employment issues. Both are founders of the New American Civil Rights Project, a web site and blog documenting civil rights issues and cases of interest.
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