The Office for Civil Rights Overreaches on Transgender Mandate

National Association of Scholars

In light of the recent controversy over Gail Heriot, a member of the NAS board, testifying on the Department of Education’s overreach in its latest mandate for transgender restrooms, we have decided to take a more forward position on the issue of transgender rights. NAS president Peter Wood has signed an open letter, copied below, calling on civic leaders to uphold the American legal tradition of limited power and to protect the privacy and safety of the American public.

The movement for “transgender rights” in the United States is in need of serious scrutiny, as our federal and state governments are taking this controversial notion too far.  The very concept of “transgender” is of recent origin and uncertain meaning.  Instead of the detailed and skeptical attention any such novelty should receive, transgender “rights” are now being inscribed into federal civil rights statutes with potentially dangerous consequences, including the exploitation of children.   

We believe that there is a profound need to examine the basis of “transgender rights” before framing any public policy aimed at sheltering these rights at the expense of the privacy and safety of the public.  We are also concerned about the risks of harm such policies may pose to vulnerable young people who may suffer from aberrant psychological conditions. And, we are mindful that the call for transgender rights is, in some instances, part of a larger movement aimed at a fundamental transformation of marriage, family, sexual relations, and “gender identity” in our society, not to mention biology.    

None of these are matters to take lightly, or to delegate to bureaucrats who may have, at best, a very limited perspective on the underlying issues. But that is exactly what has happened.  This radical policy represents a profound expansion of federal power without a legitimate statutory basis.   

The Office for Civil Rights in the U.S. Department of Education and the Civil Rights Division of the U.S. Justice Department jointly issued a “Dear Colleague” letter on May 13, 2016, setting forth a public policy that allows “transgender” students in the nation’s schools an enforceable right to use the restrooms, showers and locker rooms of the sex they arbitrarily “identify with,” at that moment, rather than those of their biological sex. This controversial and reckless government overreach increases the risk for our children’s safety and privacy in deference to an un-tethered notion of rights. This policy rejects the scientific reality of every person’s biological sex. To force all Americans to comply with such an extreme and faulty premise – that every person’s sex is “assigned” to them, rather than simply identified at birth – is beyond the pale.  

There is no statutory basis for the government’s letter, although it goes through the motions of claiming that Title IX of the Higher Education Act mandates allowing boys in girls’ locker rooms. Congress passed no such law. The courts have made no such ruling. Nor is there even a regulatory basis for this new rule. A “Dear Colleague” letter is a format increasingly employed by the Obama administration when it seeks to impose a rule without going to the trouble of seeking legal authority or even public hearings. Typically, recipients of guidance letters from the Civil Rights Division or Office of Civil Rights presume that such letters accurately reflect the law and are almost always cowed into compliance with the terms of the letter. Very few recipients have the courage or resources to challenge such a letter.  

Even those who might agree with the spirit or substance of the rule ought to be concerned about the process.  If this sort of administrative power-grab can be employed successfully to advance a cause favored by one side of the political spectrum, in due time it can - and will - be employed by the other side, as well. We should all agree that our public policy should be made on the basis of the rule of law and due process, not on the basis of political expediency by some unelected bureaucrats.   

Any claim that a portion of the American people has been treated unfairly summons our sympathy, but such claims are not above careful examination for their factual basis, as well as for danger of unintended consequences. The movement for transgender rights rests on ideologically-manufactured definitions of human biology of a very recent vintage; themes in popular entertainment and celebrity culture; and on hypothetical extensions of Supreme Court decisions.    

“Transgenderism” itself is rare and frequently pathological, as it is associated with high suicide rates and other psychological dysfunctions.  Some young people, however, are vulnerable to both “body dysmorphia” and to related conditions.  By turning these vulnerabilities into a right to choose one’s own “gender,” the advocates of transgenderism pose a significant danger to the health and safety of the people they propose to help.  

If progressive advocates are aware of this danger, they ignore it.  The movement appears to be far more interested in furthering its ability to dominate the instruments of state power than it is in the welfare of actual children or the American public.  Distorting the law to implement radical policy, opposed by the overwhelming majority of Americans, evinces a design to dispense with legal traditions and limits on power that have blessed this nation for centuries. In addition, considering all the possible actions the federal government should be taking to keep us safe -- like addressing porous borders, rising terrorism, the weakening economy, the escalating collapse of the Middle East, rising crime rates, etc. -- we firmly believe that, in setting bathroom, shower and locker room policies in local schools, the federal government has exceeded its authorities while putting our children’s mental health at risk to politically-driven psychology and their very lives in peril at the hands of potential sexual predators.  We urge you to join us in opposing this grave threat to children and this abject rejection of law-making by self-government, that manner by which America’s founders intended our constitutional system to function.  



The Undersigned:  

(Titles for identification purposes only)  

Louie Gohmert, Member of Congress  

Dan Forest, North Carolina Lt. Governor   

Richard A. Viguerie, Chairman,  

Peter Wood, President, National Association of Scholars  

Michelle A. Cretella, MD, President, American College of Pediatricians  

LTG (Ret.) William G. Boykin, USA, Executive Vice President, Family Research Council  

Morton Blackwell, Chairman, The Weyrich Lunch  

Tim Wildmon, President, American Family Association  

Star Parker, President and Founder, Center for Urban Renewal and Education  

Michael P. Farris, JD, LLM, Chairman, Home School Legal Defense Association  

Frank J. Gaffney, Jr., President & CEO, Center for Security Policy  

George Rasley, Editor,  

Sandy Rios, Director of Governmental Affairs, American Family Association   

Susan Carleson, President, American Civil Rights Union  

Elaine Donnelly, President, Center for Military Readiness  

J. Christian Adams   

Dr. Ron Crews, CH (COL) USAR Retired, Executive Director, Chaplain Alliance for       Religious Liberty;  Endorsing Agent, Grace Churches International  

Andrea Lafferty, President, Traditional Values Coalition  

Stella Morabito, Author   

Lisa Bell, Founder, Youth Trans Critical Professionals  

Robert Knight, Senior Fellow, American Civil Rights Union  

Cathie Adams, former President, Texas Eagle Forum; former Chairman, Republican Party of Texas  

Anne Schlafly Cori, Vice-chairman, Eagle Forum  

Dick L. Brewbaker , Alabama State Senate, 25th district  

Dr John H Killian, Pastor, Maytown Baptist Church, Past President Alabama Baptist State Convention  

Clyde Chambliss, Senator, Alabama State Senate  

Betty Peters, State School Board of AL District II

Mike Holmes, Representative, Alabama House of Representatives  

Becky Gerritson, President, Wetumpka TEA Party (AL); Founder, Born Free American LLC  

Rosina Kovar, National Eagle Forum Board Member  

Stephanie Bell, Alabama State Board of Education, District III  

Peter Weyrich, Conservative Activist  

Dee Hodges, President, Maryland Taxpayers Association  

Kenneth R. Timmerman, Republican nominee for Congress, MD-8 (2012); Author  

Lew Uhler, President, National Tax Limitation Committee  

Michael J. Bowen, CEO, Coalition For a Strong America  

Stephani Scruggs, COO, Coalition For a Strong America  

Chaplain Ayesha Kreutz, Founder and Pro-Life Director, Frederick Douglass Foundation of New York 

Sandy McDade, President, Louisiana Eagle Forum  

Kristin Fecteau, Co-Founder, Campaign to Free America  

David Christensen, Vice President of Government Affairs, Family Research Council  

Peter J. Thomas, Chairman, Americans for Constitutional Liberty  

Gerrye Johnston, Founder/CEO, Women for Democracy in America, Inc. 

Joseph D. Renick, Research Scientist

David H. Pickup, MA, LMFT, Co-founder National Task Force for Therapy Equality

Brian Camenker, MassResistance   

Amy Ridenour, Chairman, The National Center for Public Policy Research  

Deb Marks, State Director, Colorado Parents Involved in Education (COPIE); VP on Board of Directors, Citizens for Objective Public Education, Inc. (COPE); Concerned Citizen, Educator & Parent  

Tom Ford, PhD, Sanctity of Marriage Alabama   

Pastor Kenneth Garner, Holtville Riverside Baptist Church  

Rev. Carmen Falcione, Founder, President and Pastor of The Gathering Ministry, Montgomery, Al.  

Eunie Smith, President, Eagle Forum of Alabama; Vice President, Eagle Forum  

Carolee Adams, President, Eagle Forum of New Jersey  

Trayce Bradford, President, Texas Eagle Forum  

Orlean Koehle, State President, Eagle Forum of California  

Robert Lattimer, President, Citizens for Objective Public Education (COPE)  

Bishop Fred Adetunji, Fresh Oil Fellowship of Churches  

Tijuanna Adetunji, Life & Liberty Advocate  

Cooper Stinson, Pastor, Ramer Methodist Church (AL)  

Dr. Lou Campomenosi, President, Common Sense Campaign Tea Party, Spanish Fort, Alabama    

Ann Eubank, Chair, Alabama Legislative Watchdogs  

Zan Green, Founder and President, Rainy Day Patriots  

Grady Russell Pastor, Bethel Worship Center (AL)


Image: Seal of the Department of Education // CC BY

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