Further complicating this issue is that Cruz and others who oppose transgender rights refer to people by their biological sex, not the one with which they identify. “Transgender” is the umbrella term for people who identify with a gender that does not match their biological sex. A transgender boy is born as a girl. A transgender girl is born as a boy.
It’s important to note that it is Cruz’s opinion that transgender teenagers should be referred to by the gender that matches their chromosomes — even though this is not the norm with transgender labels. So when Cruz says “teenage boys,” he is talking about high school students who look, dress, identify and live as girls and are treated as girls by their families, classmates and administrators.
We are focusing our fact-check on whether the Obama administration is forcing schools to adopt its transgender policies, and will review the developing legal case Cruz is referring to in his claim.
In 2014, the Obama administration declared that students can use sex-segregated spaces (i.e., bathrooms, changing rooms, locker rooms with shower facilities) based on their gender identity. Transgender students and their advocates cheered this decision, but it drew a fierce backlash from opponents who say it jeopardizes privacy.
At question is Title IX — a federal civil rights law designed to prevent discrimination on the basis of gender in schools that receive federal funding — which is enforced by the Department of Education’s Office of Civil Rights. Since 2014, there have been challenges to the Obama administration’s interpretation and most have been unsuccessful.
The case that advocates and opponents are watching right now is that of Gavin Grimm, a 16-year-old who was born a girl and identifies as a boy. The teen used the boys’ bathroom at a Virginia public high school for weeks, until parents heard about it and complained. The school board passed a rule to restrict students to use bathrooms that correspond with their “biological genders.” Cruz’s spokesman Brian Phillips said the candidate was referring to this case. (Note: In that case, Cruz incorrectly referred to it as a “junior high” school.)
Grimm and the American Civil Liberties Union sued the Gloucester County School Board. The Department of Justice and the Department of Education weighed in on it in the teen’s favor, filing statements of interest. A federal district court judge denied the request to allow the student to access the boys’ bathroom.
Grimm and the ACLU appealed that decision, and a federal appeals court ordered a lower court to rehear the student’s claims. The appeals court deferred to the Education Department’s interpretation of Title IX. “The 4th Circuit is the highest court to weigh in on the question of whether bathroom restrictions constitute sex discrimination, and the decision could have widespread implications on how U.S. courts interpret the issue as civil rights activists and local politicians battle over bathrooms,” The Washington Post’s Moriah Balingit wrote.
Phillips said that because Grimm’s suit was based on the agency’s interpretation of Title IX, the Education Department’s arguments in support of Grimm extends to similar legal cases involving sex-segregated facilities like bathrooms and locker rooms.
In one case, a Chicago high school district defied the Education Department’s interpretation and decided to continue banning transgender students from using locker rooms for changing and showering in accordance with their gender identity. It was in response to a civil rights complaint by a transgender girl to use the girls’ locker room. For the first time, the Education Department found a district in violation of Title IX based on transgender rights and threatened to pull federal funding. The district entered into a settlement and agreed to set up privacy curtains for any students who want them.
Cruz says schools are forced to allow teenage boys to shower with teenage girls. When referring to non-transgender students, this is a highly questionable assertion. School administrators from 10 states filed a brief in Grimm’s case showing that schools have authority to take action if the law is abused by non-transgender students. The administrators said their schools have private bathrooms and showering and changing facilities for students who may feel uncomfortable. Even in the Illinois case, the school district was able to set up privacy curtains to protect any student who may feel uncomfortable in shared facilities. Advocates also note that so far, there haven’t been problems with non-transgender boys or girls nefariously trying to use different bathrooms.
The DOE has no comprehensive guidelines to address every contingency, but there needs to be some confirmation that a student using the bathroom that is not aligned with their biological sex is, indeed, a transgender student, said Joshua Block, ACLU attorney representing Grimm. For example, some schools confirm the students’ transgender identity based on pattern of behavior or a doctor confirmation.
Matthew Sharp, legal counsel for Alliance Defending Freedom, which advocates for religious freedom, agreed with Cruz. The Education Department’s interpretation prohibits schools from even questioning the student’s gender identity, he said.
The Pinocchio Test
Cruz says the Obama administration is forcing schools to adopt its transgender policies. It is clear that the Obama administration has been enforcing its interpretation of Title IX on school districts – as it is the department’s job. The Department of Education has sided with the student in the Grimm case, which is still an ongoing legal case. If the transgender student wins the lawsuit in that case, it could have major implications for school districts in other states. To be clear, the Education Department is not suing any schools, and Cruz is incorrect on that point.
When Cruz says teenage boys are forced to shower with teenage girls, he uses slippery language. He is referring to transgender girls (born as boys) showering with non-transgender girls (born as girls). The Obama administration’s interpretation does support that: giving transgender boys and girls access to the bathrooms of the gender with which they identify. But this could also be interpreted by the public as if Cruz is referring to non-transgender boys showering with non-transgender girls.
Opponents of the law say this is the danger of actions like that of the Obama administration. But even in schools that have to allow transgender students to use facilities that correspond with their gender identity, there are still opportunities for any students to maintain privacy by using a private facility or being separated by curtains.
This is a classic case of a politician using rhetoric to obfuscate and simplify a complex issue, earning him Two Pinocchios.
Moments when Ted Cruz was more surprising than Donald Trump
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