2018 | Week of November 5 | #1280
Late last month word came that the Trump administration is likely to issue a transgender policy that is both simple and scientific—the word sex means what a person is born as, in other words, sex means biological sex, not what a person thinks or feels he or she wants to be.
In essence what the Trump administration would be doing is respecting the existing language and intent of the current law. President Obama had actually taken unconstitutional liberties in this area when he handed down what are commonly referred to as “dear colleague” memos from various departments, claiming sex at least includes, if it doesn’t actually mean, “gender identity.”
This is a significant policy clarification, especially for public schools who have used the federal government as a heavy scare tactic against parents and citizens who have opposed their policies giving special rights and protections to students who say they are transgendered.
During the Obama administration the word sex was interpreted to include “gender identity.” As Peter Sprigg, with Family Research Council, writing recently for the Washington Examiner points out, “[u]nder this view, laws and policies prohibiting discrimination on the basis of sex were interpreted as also protecting persons who identify as transgender against discrimination on the basis of their self-identified, psychological gender identity.”[1]
A significant problem with this is that when Congress wrote the laws to prohibit discrimination based on sex, they were most definitely not considering transgender identities. The law prohibiting discrimination on the basis of sex in employment and public accommodations was passed in 1964, and the law preventing such discrimination in education was passed in 1972. Of course the wording of those laws does not mention “biological” in connection with the word sex, because 45 to 50 years ago, virtually no one questioned what anyone meant when the word sex was used to discuss the state of being male or female. The language of the laws—laws that have never been changed by Congress—is clear, as is the intent of those who wrote them and passed them.
President Obama, who vowed to change America, took matters into his own hands on this issue and without any legislative action whatsoever determined to make a rather seismic change regarding the word sex as it relates to federal law.
In 2014, the Obama Department of Justice issued a memo unilaterally stating that sex discrimination in employment included gender identity. In May 2016, the Obama Departments of Justice and Education issued a joint memo to public schools and public universities informing them that to qualify for Title IX federal funding, they had to allow biological males in the girls’ restrooms, locker rooms, and changing rooms and vice versa, and among other ridiculous and wrong-headed related directives, exhorted school personnel to avoid using gender-specific pronouns altogether.
Fortunately, and because elections really do have consequences, President Trump has rightly rescinded both of these unconstitutional directives. The result is the federal government is now operating on the existing law and respecting the plain language and the intent of Congress at the time the laws were passed.
What the Trump administration is now considering would define the word sex to clearly state it is a person’s biological makeup, not how one thinks or feels about his/her sex. Such clarification shouldn’t be necessary, but in a culture whose morality and common sense have been turned on their heads, it needs to be done.
The local and state impact of these changes should be significant. No longer will public school personnel or local elected officials or state legislators be able to use the federal government as the reason for violating the privacy rights of the vast majority of people by allowing men who say they are women in the women’s restrooms and changing rooms, and vice versa.
Now, when cities such as Racine, Sun Prairie, De Pere, Milwaukee and others and school districts across the state pass these policies giving transgendered people special rights and protections, they are doing so strictly because they want to advance this agenda. They are saying they are fine with putting people, especially women, in unsafe situations and even trouncing on religious freedom. They can no longer claim any federal dictate is supposedly forcing them to take this course of action.
I hope the Trump administration follows through with this clarifying policy, which would completely upend the unconstitutional usurpation of congressional power by the Obama administration in this area. It would be one strong stand in support of the rule of law.
This is Julaine Appling for Wisconsin Family Council reminding you the prophet Hosea said, “My people are destroyed for lack of knowledge.”
[1] https://www.washingtonexaminer.com/opinion/op-eds/trump-transgender-policy-is-simple-and-scientific-sex-means-biological-sex
