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Editorial: Wrongheaded decision on transgender students cries out for correction

A new sticker designates a gender neutral bathroom at Nathan Hale high school in Seattle.
(Elaine Thompson / Associated Press)
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In a wrongheaded ruling that purports to apply to the entire country, a federal judge in Texas has blocked an Obama administration directive requiring schools to allow transgender students to use the bathrooms and locker rooms of their choice.

The ruling by U.S. District Judge Reed O’Connor is disappointing because it will perpetuate policies that make life difficult for children who often face ostracism and bullying. But it’s also lamentable for its reliance on an outdated understanding of the legal concept of sex discrimination — one that cries out for correction by the Supreme Court.

On May 13, the U.S. Department of Education sent a letter to school districts advising them that students should be allowed to use the restrooms and locker rooms consistent with their gender identity even if that identity didn’t match the sex they were assigned at birth.

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The letter reminded the schools that, as a condition of receiving federal funds, they are prohibited by a law known as Title IX from denying benefits to students “on the basis of sex” — which the Education Department in recent years has interpreted to include discrimination on the basis of gender identity.

O’Connor flatly rejected that view. Ruling on a challenge to the Education Department’s policy brought by 13 states and two school districts, he interpreted Title IX and a regulation implementing it as defining “sex” only in terms of biological differences between male and female students. That was also Congress’ intent, he suggested.

Fortunately, other courts have been more enlightened. In April, the U.S. 4th Circuit Court of Appeals in Richmond took a more favorable view of the Education Department’s interpretation of Title IX in ruling in favor of a transgender boy who wanted to use the male restroom at his Virginia high school. That decision has been stayed by the U.S. Supreme Court pending an expected appeal by the school district.

In the past, the Supreme Court has recognized that concepts such as sex discrimination evolve with the times. For example, in 1998 the court ruled in favor of a male oil-rig worker who alleged that he had been the victim of sexual harassment by male co-workers even though male-on-male harassment wasn’t on Congress’ mind when it enacted laws against workplace discrimination. In that case, the late Justice Antonin Scalia noted that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”

The justices should similarly rule that Title IX’s ban on sex discrimination in schools protects transgender students and that the Education Department’s rules are a reasonable way to accomplish that end. It’s time that a truce is called in the “bathroom wars” and that transgender students are treated with dignity.

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