Time for a breather on transgender edict for schools

Ever since the Obama administration issued a sweeping ruling in May directing that every public school in the country needs to allow transgender students to use the bathroom and locker room facilities that match their gender identity rather than their biological identity at birth, school officials have been in a tizzy over implementation.

The murky issue was further complicated when a federal judge in Texas came down in August on the side of school districts opposing the directive. A dozen states have gone to court to stop enactment of the administration's ruling. North Carolina was the first to sue, and it cost the state dearly in canceled events from groups supporting the administration's directive.

Now that a federal judge has essentially called for a "time out," this would be a good time to step back and re-examine the federal directive to see whether it needs to be rethought. We believe it does. There are many individual variables to consider, and it has become obvious that one rule does not affect all equally.

The federal judge's ruling stops the U.S. Education Department directive. The judge said the federal government went beyond its authority under a 1972 law that bans sex discrimination in schools.

The injunction applies nationwide, not just in Texas, and comes just as most schools are returning for a new academic year.

Locally, some schools have added wording to their nondiscrimination policies to include transgender students; others are waiting anxiously for clarification, especially from the Pennsylvania School Boards Association, which has been closely monitoring the legal twists and turns of this highly volatile and controversial directive.

The issue gained much attention at an East Penn School Board meeting in Lehigh County in August when an incoming freshman student, accompanied by her mother, told the board that she would feel uncomfortable undressing in front of a transgender student in the girls' locker room. Saying her feelings are based partially on her religious upbringing, she told the board she was raising the issue in advance of its becoming a problem later on in the term.

Stressing that she has nothing against transgender classmates, the student said she wishes to have her rights acknowledged, just as they are being acknowledged for those who consider themselves to be transgender.

The Obama administration's declaration, signed by both Justice and Education department officials, directed the schools on what they should do to ensure that their students are not discriminated against. Although this directive does not have the force of law, there was an implied threat: Schools that do not go along with the edict could face lawsuits and/or the loss of federal aid.

This is a tactic the federal government has used before, most notably a generation ago to compel states to adopt a uniform drinking age of at least 21. If the states didn't comply, the federal government would withhold funds for highways and bridges. Reluctantly, some states with 18- and 19-year-old drinking laws threw in the towel, because too much federal aid was at stake.

There is nothing like threatening to take away education funding that gets the immediate attention of school board members and administration officials.

On the surface, this nondiscrimination move seems to make sense, but the devil is in the details, and this is what troubles us.

Critics, and we're among them, are concerned that the federal government is trying to impose its values on local communities, especially those which do not agree with this move.

This is just the latest volley from the Obama administration in support of the rights of gays to marry, allowing them to serve in the military in lieu of "don't ask, don't tell," and prohibiting federal contractors from discriminating against them.

"No student should ever have to go through the experience of feeling unwelcome at school or on a college campus," said Education Secretary John B. King Jr.

"We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence."

As noble as that sentiment may seem, the implementation is anything but simple.

Presently, there are no statutory nor binding court cases in Pennsylvania directing that facilities be segregated based on biological sex. Nothing in the Texas judge's order, however, prevents private lawsuits under Title IX or the U.S. Constitution. If lost, these cases can result in monetary damages and attorneys' fees, all of which would be borne by us taxpayers.

The Pennsylvania School Boards Association, to which many local districts turn for guidance, urges all districts to stay abreast of any new developments in the issue, especially if a school district plans to take any action or adopt a policy contrary to the Obama administration's wishes.

"PSBA continues to suggest that all school districts work with students requesting accommodations on a case-by-case basis through interaction with the students and their parents/guardians, consistent with your local practices," an association representative said.

A sampling of area school districts' nondiscrimination policies shows that most are silent on the issue of sexual orientation.

The Tamaqua Area School District is one of the few local districts that include "sexual orientation" in its anti-discrimination policy.

In implementing policies to protect and respect the rights of heterosexual and transgender students, many factors need to be taken into consideration, and these factors vary from school district to school district, making "caution" the operative watchword.

By Bruce Frassinelli | tneditor@tnonline.com