Male-born transgender students in Hawaii are expressly permitted to use female restrooms and locker rooms, and if that makes girls uncomfortable, it’s up to them to find an alternative.
Not the transgender students — the girls.
The Hawaii Department of Education said that its transgender-student guidance is designed to create “a safe and nurturing learning environment for all students,” but as far as Defending Education is concerned, the policy has major legal problems.
The parents’ rights group filed a complaint Thursday with the U.S. Department of Education’s Office for Civil Rights against the state agency, saying that its transgender policy “turns Title IX on its head.”
“Too many states are following bad legal advice or simply flouting the Constitution’s supremacy clause in clinging fast to state law that directly contradicts federal civil rights law and the US Constitution,” said Sarah Parshall Perry, Defending Education vice president and legal fellow. “Hawaii is one of them.”
She said that “from top to bottom, its Education provisions make clear that gender identity receives ’most favored class’ status over biological girls who are not entitled to their own spaces or sports.”
The complaint said that Hawaii’s “Guidance on Supports for Transgender Students” runs afoul of federal law by placing the onus on girls uneasy with sharing single-sex spaces with biological males to seek alternative accommodations.
The guidance says that “a transgender student should determine which restroom to use” and “a transgender student should not be compelled to use an alternative restroom.”
If “non-transgender” girls have objections, the “non-transgender female students should be provided one of the alternatives listed in this Guidance or other, similar alternatives,” according to the policy.
Those alternatives include having the girls use single-stall restrooms or private changing areas, or even reworking their schedules to avoid transgender students in gym class.
Defending Education, a nonprofit advocacy group, argued that the guidance violates Title IX of the Education Amendments of 1972, which bars sex discrimination in education, as well as the Fourteenth Amendment’s Equal Protection Clause.
“Hawaii’s Guidance turns Title IX on its head and strips female students of their Title IX rights to single sex intimate spaces,” Defending Education said in a statement.
In addition, the guidance runs afoul of the First Amendment by compelling students, teachers and staff to use the preferred opposite-sex pronouns of transgender students, according to the complaint.
The policy mirrors that of the Olentangy School District in Ohio, which the 6th U.S. Circuit Court of Appeals found unconstitutional in November, but Hawaii’s guidance remains in force.
“Hawaii also mandates the use of preferred pronouns, regardless of religious or ideological objection and direct contravention of the First Amendment,” said Ms. Perry. “In our extensive, ongoing assessment of the legality of state education laws and policies, Hawaii’s come in as some of the worst.”
President Trump signed an executive order last year making it clear that Title IX applies to biological sex, not gender identity, but Democrat-led states like Hawaii have flouted the order by continuing to allow transgender students access to opposite-sex restrooms, locker rooms and sports.
The states argue that their civil rights laws barring discrimination based on gender identity supersede the executive order, an issue making its way through the courts.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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