A Mere Blip in the Bathroom Wars?

The bathroom wars wage on. Repealing the Obama-era edict that hardened the conflict, as President Trump did Wednesday, changes little in practice.

The Trump administration rescinded guidance that required federally funded schools to permit transgender students' use of whichever restroom or locker room corresponds to their gender identity. The guidance, a "Dear Colleague" Letter the Department of Education's Office for Civil Rights issued last May, relied on a reinterpretation of Title IX, a forty-five-year-old statute outlawing sex discrimination in schools—an interpretation the Obama administration had been rolling out, by degrees, for years.

The 2016 guidance, backed by a statutory funding mandate, redefines "sex" to include gender identity and discrimination to include the binary boy-girl segregation typical of school locker rooms and restrooms. A federal guidance, a letter from an agency that stretches an old law to address a new problem, does not need congressional approval or the normal notice-and-comment process federal agency regulations go through.

Title IX at its foundational core states that no student "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Fine. It notably led to equal funding for men's and women's collegiate sports—and, three years after it passed, it gained an amendment that smacks of Equal Rights Amendment anxiety: Schools "may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex." Except, of course, "sex" is no longer what the 1970s thought it was.

What precipitated the lately overturned guidance, an interpretation of male and female as fluid constructs, changeable designations, is not only fashionable but turns out to have already been the law of the land. When a federal agency issues a guidance document clarifying the modern meaning of a socially-consequential current law, it's an imposition on the intent of past legislation and, typically also, a complicated burden on unsuspecting Americans.