Legal backgrounder: The Obama administration’s attempt to rewrite Title IX

When Congress enacted Title IX in 1972, it did not intend to give the president or executive agencies a blank check to write dramatically new social policy.

That, however, is precisely what the administration is doing today by announcing that it has reinterpreted that statute to require schools to create new policies on restroom use, so as to accommodate those who would like to use the restroom of the opposite sex.

The administration’s position goes beyond its legal authority. Only Congress can make so fundamental a change in the law. On issues of this magnitude, which implicate issues of the rule of law, safety, privacy, self-government, federalism, and more, the process is critical. The president cannot legislate with a stroke of a pen. Something this important cannot be a matter of bureaucratic fiat.

Forty years ago, Congress approved the Education Amendments of 1972 by 88 percent in the Senate and 69 percent in the House, sending them on to President Richard Nixon for his signature. The heart of that law is Title IX:

No person in the United States 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.

Congress has occasionally supplemented and modified the law in the ensuing decades, but in the last few years, something more troubling has begun to occur. It is nothing short of an attempt by the current presidential administration to rewrite this venerable statute without congressional oversight.

The attempt to remake Title IX began recently. In April 2014, the Department of Education issued “guidance” on enforcing Title IX, the law banning sexual discrimination in education, in the context of sexual violence. The 46-page document includes an interpretation of the statute that includes “gender identity”: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.”[1]

In January 2015, OCR issued a dear colleague letter interpreting this document as requiring schools to provide all facilities and services based on the self-identified gender of students. This letter informed an unnamed school official (the information is redacted in the available copy):

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.[2]

The letter referenced two OCR investigations that resulted in out-of-court resolutions.

The first involved Arcadia School District in California. There, OCR investigated complaints of discrimination against transgender students, specifically that “the District prohibited the Student from using sex-specific restroom and locker room facilities designated for boys during his sixth and seventh grade years.”[3] The agreement between OCR and the District required the District to hire a consultant, create a support team at the parents’ request, and

  1. provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  2. provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
  3. treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
  4. ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.

At the district level, the school agreed to implement new discrimination policies to “specifically include gender-based discrimination as a form of discrimination based on sex, and b. state that gender-based discrimination includes discrimination based on a student’s gender identity, gender expression, gender transition, transgender status, or gender nonconformity,” revise policies to “to ensure that all students, including gender nonconforming and transgender students, are provided with equal access to all such programs and activities,” provide training to employees on transgender issues and provide reports to OCR.[4]

The second resolution involved a complaint against Downey School District, also in California, and alleged more general harassment of a male student who now identified as female.[5] The resolution agreement requires the district to “continue to treat the Student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students at school, and at all District-sponsored activities, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.”[6] The district was required to enact the same kinds of policies required of Arcadia.

In June 2015, the Department of Justice filed a “Statement of Interest” in a federal case in Virginia which argues the OCR position as the appropriate interpretation of the requirements of Title IX: “The term ‘sex’ as it is used in Title IX is broad and encompasses gender identity, including transgender status.”[7] The case was brought by the ACLU on behalf of a student, born female, but who now identifies as male. The student alleges she was allowed to use the boys restrooms for a few weeks but the school district then enacted a policy that specified bathroom assignments follow biological sex. For students with “gender identity issues” the district designated private facilities. The ACLU says this “segregates transgender students from their peers.”[8]

The district court actually dismissed the claim, saying the OCR interpretation is not a plausible reading of the law and conflicts with an earlier Department of Education regulation that says schools may segregate based on sex, which this court said must include biological sex.[9] The ACLU has appealed.[10]

In another case, in Palatine, Illinois, a boy who identifies as a girl sought access to the girls locker room rather than the private facilities offered by the school. The student filed a complaint with the Department of Education with ACLU help, and OCR told the school it needed to allow the student to use the girls locker room.[11]

These cases are having an impact on other schools’ policies. In Hillsboro, Missouri, despite a student walkout opposing the policy, the high school allowed a male student who identifies as female to use women’s facilities. A news report explains:

Districts that refuse to allow students to use a bathroom for the gender with which they identify could run afoul of the U.S. Department of Education’s Office of Civil Rights, said Kelli Hopkins of the Missouri School Boards’ Association.

“The Office of Civil Rights has issued an opinion that says, if you do this, you have engaged in gender discrimination,” Hopkins said. “At the same time, there is no case law or statute in Missouri that says this is against the law.”

Schools found to have violated a student’s civil rights are at risk of losing some of their federal funding, Hopkins said.[12]

Fairfax County, Virginia, also implemented a policy adding “gender identity” to the district’s discrimination policy after being told OCR could terminate federal funding if it did not.[13]

In December 2015, a federal court in California denied Pepperdine University’s motion to dismiss a lawsuit alleging the university’s basketball team discriminated against two lesbian players. The court concluded, “[S]exual orientation discrimination is not a category distinct from sex or gender discrimination. Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”[14] The court cited the EEOC guidance on Title VII as support for this conclusion.

Most recently, activist groups have set their sights on religious schools that have sought an exemption from these interpretations of Title IX. Title IX has long allowed schools to request an exemption from the statute if “application of the law would conflict with specific tenets of the religion” so as not to lose federal funding and open themselves to private lawsuits. The exemption will be granted as long as a school can show it is controlled by a religious organization and it identifies which applications of the law conflict with its religious teachings. At the urging of the Human Rights Campaign and others, the Department of Education announced earlier this year that it would “create a searchable database that reveals the names of colleges and universities that have received exemptions on religious grounds from federal civil rights protections.”[15]

Now, on May 13, 2016, the Department of Education and the Department of Justice issued another letter reiterating its claim that Title IX “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”[16] In fact, the letter brazenly asserts that it is not adding “requirements to applicable law.” The letter also specifically invokes the possibility that schools may lose federal funds if they are not in compliance.

Some excerpts from the letter illustrate how remarkably broad and novel the administration’s requirements are:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.


The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.


Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

The provision getting the most attention relates to the use of locker rooms and restrooms and specifically precludes a solution where schools provide single-user facilities to a student to assuage privacy and safety concerns:

A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

On a subject of this importance, process matters. A massive shift in the meaning of federal law is not something to be done by a bureaucratic agency at the stroke of a pen.

[1] U.S. Department of Education Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence” April 29, 2014, pp. 5-6, at

[2] U.S. Department of Education Office for Civil Rights, Letter, January 7, 2015, at (Exhibit B).

[3] OCR Case No. 09-12-1020 (July 24, 2013), at

[4] Resolution Agreement Between the Arcadia Unified School District, the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division, OCR Case Number 09-12-1020, July 24, 2013 at

[5] OCR Case No. 09-12-1095 (October 14, 2014), at

[6] Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095 (October 14, 2014), at

[7] Grimm v. Gloucester County School Board, Statement of Interest of the United States, Civil No. 4:15cv54 (June 29, 2015).

[8] ACLU, “G.G. v. Gloucester County School Board,” November 23, 2015 at

[9] G.G. v. Gloucester County School Board, Civil No. 4:15cv54 (Eastern Dist. Va. 2015) at

[10] G.G. v. Gloucester County School Board, Brief of Plaintiff-Appellant, No. 15-2056 (4th Cir. October 21, 2015) at

[11] Duaa Eldeib & Robert McCoppin, “Feds Reject School District’s Plan for Transgender Student, Locker Room” Chicago Tribune, October 21, 2015, at

[12] Doug Moore, “Hillsboro High Students Walk Out Over Transgender Dispute,” St. Louis Post-Dispatch, September 1, 2015, at

[13] Lauretta Brown, “Feds Forcing Schools to Adopt ‘Nondiscrimination’ for Transgender Teachers and Students,” CNS News, May 7, 2015, at

[14] Videckis v. Pepperdine University, Case No. CV-15-00298, (C.D. Cal. 2015) at

[15] Liam Stack, “Government to Reveal Colleges With Title IX Waivers,” New York Times, January 21, 2016, at

[16] U.S. Department of Education & U.S. Department of Justice, “Dear Colleague Letter on Transgender Students,” May 13, 2016, at


Law professor on how Utah balanced religious freedom, LGBT rights

This week we had the opportunity to converse with Robin Fretwell Wilson, professor at the University of Illinois College of Law. Professor Wilson talked about what Utah got right as it worked to balance religious freedom with LGBT rights in the 2015 general legislative session.

Well, I think the most remarkable thing is you have the reddest state in America extending more protections to the LGBT community than even a very blue state like New York did. In other words, Utah went the distance and protected transgender people who are not expressly protected in New York and in exchange for that, it got ahead of the curve on same-sex marriage and doesn’t find itself flat-footed like the rest of the country right now where you have marriage clerks resigning and you have state offices closing down the marriage function, which I think is wrong, and you don’t have questions about whether a religious group’s tax exemption is going to be at risk.

All that gets buttoned down in the “Utah Compromise” and what I call marriage conscience protections, as well as some innovative pieces, like if you say something in a non-professional setting – think about saying something at a religious meeting on Sunday, like “marriage is between a man and a woman,” in your view, and then walk into your real estate business on Monday – nobody can yank your real estate license. That’s new; that hasn’t been there in other states.

There has to be a forum for every Utahn to be married, in every county, but the county can dispatch that duty in a way that means no religious objectors who have been working at those offices can be fired, except for the [County] Clerk who has been elected. The [County] Clerk can basically outsource this function to any authorized celebrant in the community whether that’s a religious figure or a judge; whoever volunteers. And everybody is treated the same way; it’s seamless. So, a same-sex couple comes in and they get the same treatment as a straight couple.

Continuing, Robin Wilson noted:

Utah actually has workplace speech protections both inside and outside the workplace that are really important in the sense that they protect political and religious speech about marriage, family and sexuality. But they’re two-way-street provisions so if a kid goes to an Equality Utah parade on the weekend he can’t come into the burger joint [where he works] on Monday and be fired for that – and neither can somebody who gave $1000 to Prop 8 be fired for doing that outside the workplace. It’s nobody’s business.

Inside the workplace, there’s a bigger role for the employer to say, ‘Hey, I don’t want any kind of speech about marriage, family or sexuality’ – but if they allow it, if they don’t want to bar that because it conflicts with their essential business purposes, then they have to allow it on the same basis whether it is pro-gay marriage [or] anti-gay marriage, but to the extent that the employer wants to say, ‘Nobody’s going to be talking about that at all,’ then they can tell [his or her employees] that [they’re] not going to be able to do that.

Professor Robin Wilson then concluded with these observations:

Everybody is going to have the urgency of deciding how you’re going to deal with marriage in a world in which legislatures did not get in front of this problem. I think those marriage protections – things like saying if you did religious counseling about marriage before [the U.S. Supreme Court validated] same-sex marriage you can do the same thing after and if that meant you dealt with traditional heterosexual married people only, then you can do that after. Those kinds of things are going to need to be put in state-wide law if there are municipal laws that say otherwise or if an organization contracts with the state or is tax-exempt or for a variety of other reasons. I think the way forward there is not to try to do legislative cram-downs. In other words, just because you have the votes doesn’t make it right. It’s going to go better if everybody is trying to think about a civil society where we live together in peace.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

This post is a transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

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Registration now open for World Congress of Families IX!

This October, an amazing slate of speakers and entertainment — including The Piano Guys and the Mormon Tabernacle Choir — will come together to inform, energize and uplift an international gathering in Salt Lake City.

The World Congress of Families (WCF IX) is the world’s premier gathering of family scholars, religious leaders, parliamentarians and advocates uniting to strengthen the family. Registration is now open to the public: click here!

Plenary speakers will include:

•Nick Vujicic, Australia, who was born without limbs and is an internationally renowned motivational speaker.

•Catholic Archbishop Salvatore Cordileone, one of the strongest proponents of the natural family in the international arena today.

•Sammy Rodriguez Jr., head of the National Hispanic Christian Leadership Conference.

•Lila Rose, known for her pro-life work.

•Sheri Dew, CEO of Deseret Book, who is internationally renowned as one of the foremost women speakers.

•Dr. Jennifer Roback Morse, an economist and author of a new book, Victims of the Sexual Revolution.

•Ted Baehr, founder of MovieGuide, who conducts pioneering research into the impact of family-rated movies on the movie industry.

•Bob McCoskrie, a media personality from New Zealand.

•Allan Carlson, founder of the WCF and a top family scholar and historian.

•Ignacio Arsuaga of Madrid, one of the most effective entrepreneurial leaders in the world; he was the force behind the 2 million person march for life in Madrid.

Janice Crouse, Allan Carlson and Stan Swim at Tuesday's press conference.

Dr. Janice Shaw Crouse, executive director of WCF IX; Dr. Allan Carlson; and Stan Swim, chairman and chief operating officer of Sutherland Institute, at Tuesday’s press conference.

The announcement of October’s event was made May 12 with the signing of the official agreement between Allan C. Carlson, co-founder and international secretary of the World Congress of Families, and Stan Swim, chairman and chief operating officer of Sutherland Institute, the event’s host organization.

“This is a historic moment,” Carlson said. “Since our inaugural congress in Prague (1997), we have held events in Geneva, Mexico City, Warsaw, Amsterdam, Madrid, and Sydney. The World Congress of Families IX in the United States will be our largest stage to date, effectively allowing scholars, religious leaders, parliamentarians, and other advocates of the natural family to meet in a rich media environment and welcome engaged and honest discussion from participants who may never otherwise have attended outside the U.S.”

The World Congress of Families selects its locations similar to the way the International Olympic Committee receives bids from international cities for its venue. The Salt Lake City proposal was led by Sutherland Institute, a Utah-based public policy think tank.

“It is an honor to host WCF IX,” said Swim. “Not only is there an abundance of family-related scholarship in Utah but there is an extensive interfaith community ready to host ecclesiastical leaders from faiths and denominations around the world. Salt Lake City’s natural beauty will provide the perfect setting for our guests visiting from around the globe.”


Stan Swim and Janice Crouse during Tuesday’s announcement at the Grand America Hotel in Salt Lake City.

The World Congress of Families planning committee selected Dr. Janice Shaw Crouse, Ph.D., as executive director of WCF IX. A former presidential speechwriter for George H.W. Bush, and head of a Washington, D.C., think tank, Crouse is the author of Children at Risk and Marriage Matters, as well as a recognized expert on issues related to women and family.

Click here to register!

Bill Duncan

Sutherland statement on SCOTUS marriage arguments

Sutherland Institute is encouraged that the oral arguments in the U.S. Supreme Court today allowed the Court to hear a robust defense of core principles. First, that marriage is more about connecting mothers, fathers and children than about the government giving a seal of approval to adult choices. Second, that the right of people of the states to determine this consequential issue is fundamental and should not be infringed.

Based solely on the questions asked by the justices, it’s impossible to tell what the final outcome will be. Some justices seemed to endorse the idea that marriage is just a way for adults to express themselves. Others strongly disputed the idea that retaining the virtually universal understanding of marriage is irrational.

One theme emerged strongly in the arguments — ideas matter and when the government endorses the idea that marriage is solely about adult desires, that endorsement will have consequences.

We are pleased that the justices were able to hear strong arguments for marriage. We hope they will have the wisdom to allow the people of states to continue to retain the understanding of marriage that respects children’s entitlement to a married mother and father.

Marriage and our nation’s destiny – Sutherland Soapbox, 3/24/15

Family picture seattleThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

In a recent message, I referenced Senator Mike Lee’s January 2015 Heritage Foundation address wherein he focused on a matter of critical importance.

There are many pressing issues that deserve our attention and require action – so many in fact that it can sometimes be difficult to keep them straight.

But as I see it there is one issue – one challenge facing the American people today – that rises above the rest in its complexity, its magnitude, and the reach of its consequences. Directly or indirectly it affects nearly every other public issue you can think of, and should therefore be placed squarely at the center of our reform agenda.

… that issue is the family – its increasing importance and its declining stability – and I believe it may be the single defining challenge of our time.

The family is the first and most important institution of our society – and the foundation of American exceptionalism. …

The family has always been the linchpin of American life, but today more than ever the health of the family is indivisible from the destiny of our nation. (“Putting Families First,” delivered January 13, 2015, at The Heritage Foundation in Washington, D.C.)

Underscoring the importance of these concerns is information and data presented at the Wheatley Institution Roundtable on the Family, hosted March 19 and 20 at BYU. Recapping the conference, Deseret News writer Wendy Leonard reported that

The decline of the family in America is real, and researchers hope that a better understanding of what is happening to the fundamental unit of society will help to turn the trends.

“Marriage is viewed as a capstone rather than a cornerstone, as it used to be part of setting up your adult life,” said Sam Sturgeon, a senior research manager with Bonneville Communications and president of Demographic Intelligence. …

He said more people marry when they are finished with school or are well into their careers, and that fewer are having children.

According to U.S. Census Bureau data, fewer people ever marry, including 20 percent of men and 5 percent of women; and more people cohabit – a more than tenfold increase in the past 50 years.

Read more

Senator Mike Lee’s focus on ‘putting families first’ — Sutherland Soapbox, 2/24/15

family beach sunsetThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

Much has been said over the past several weeks about the number of significant leadership positions now occupied by Utah’s elected representatives in the nation’s capital and in organizations with national scope and influence. In addition to several House members occupying key roles in the U.S. Congress, with Republicans taking control of the Senate in the recent election, the longest-serving member of the delegation, Sen. Orrin Hatch, became the Senate president pro tempore, a position that puts him third in the line of presidential succession behind the vice president and the House speaker. Further, Governor Gary Herbert serves in the leadership of the National Governors Association, where he will soon become the chair; Salt Lake City Mayor Ralph Becker currently is president of the National League of Cities; and state Senator Curtis Bramble is the president-elect of the National Conference of State Legislatures (NCSL), a bipartisan organization serving the nation’s 7,383 state lawmakers and more than 20,000 legislative staff.

Today, I’d like to focus on U.S. Senator Mike Lee. As recently reported in the Deseret News, while visiting the state, prominent political pollster Frank Luntz “said Lee’s position as head of the Senate steering committee that acts as a conservative caucus, along with key assignments held by the other five members of Utah’s all-GOP congressional delegation, gives Utah outsized influence. [Quoting Mr. Luntz:] ‘Utah’s got the most powerful delegation in Washington … [i]t’s incredible that this is a small state with an oversized delegation.’”

Senator Lee is consistent in focusing on a particular priority. In his words: “America’s crisis of unequal opportunity is the greatest challenge facing the United States today. We need to start developing a new conservative reform agenda that restores equal opportunity to the families and communities from whom it has been unfairly taken.”  Read more

Is apple pie next? — Sutherland Soapbox, 2/17/15

A_Wreath_to_Mama_1876This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

Motherhood and apple pie, as the idiom suggests, are things we can all agree on — they’re archetypes of all that’s good and wholesome.

Well, apple pie now has some high-placed enemies, and even motherhood’s not getting the respect it used to; a certain kind of motherhood at least.

As a number of commentators have noted, the president’s plan to help middle-class families unveiled in the State of the Union speech has a blind spot. As family scholar W. Bradford Wilcox explains:

The president’s plan would triple the existing child-care tax credit to $3,000 for two-earner families with children under 5 and a combined income of less than $120,000, and it would establish a new $500 credit for families in which both spouses work. The plan would provide tax relief—which would no doubt help with the cost of child care, commuting, etc.—to middle-class families with both parents in the workforce. But families who choose to have a parent at home would see none of this tax relief.

The hopefully unintentional slight followed an awkward statement last year during a speech on Women and the Economy where the president—while endorsing paid family leave, better daycare and early childhood education—said: “sometimes, someone, usually mom, leaves the workplace to stay home with the kids, which then leaves her earning a lower wage for the rest of her life as a result.  And that’s not a choice we want Americans to make. ”

So, perhaps motherhood’s still okay as long as mother doesn’t shirk paid work to do it.

G.K. Chesterton pointed out the flaw in this line of thinking in 1920:

If people cannot mind their own business, it cannot possibly be more economical to pay them to mind each other’s business, and still less to mind each other’s babies. It is simply throwing away a natural force and then paying for an artificial force; as if a man were to water a plant with a hose while holding up an umbrella to protect it from the rain. . . . Ultimately, we are arguing that a woman should not be a mother to her own baby, but a nursemaid to somebody else’s baby. But it will not work, even on paper. We cannot all live by taking in each other’s washing, especially in the form of pinafores.

It would actually be easy to avoid the problem of singling out the choice to remain at home to care for children for less favorable treatment. Professor Wilcox notes that an idea proposed by Senators Mike Lee and Marco Rubio would expand “the child tax credit to $3,500 from its current $1,000 and extending it to payroll taxes” which would treat all parents the same, regardless of whether there are one or two wage earners in the home.

Utah’s policies have some blind spots regarding single-income families as well. For instance, if a parent who chooses to forego paid employment is divorced, the law “imputes” non-existent income to that person that will offset the obligations the spouse who caused the divorce would have had. This means a decrease in the amount that would be available to the stay-at-home parent, making it more likely that person will have to leave home for paid work. From a purely practical perspective, it might be wise for a divorced spouse to find other sources of income given the possibility that support might not be paid or might not be adequate, it hardly seems like good policy for the state to assume that the only appropriate thing for a parent who has been at home with the children to do is to get back into the workplace and have children shift for themselves as quickly as possible. Maybe that result can’t be avoided but it need not be mandated.

Policy makers need to be reminded that mothers, and sometimes fathers, who sacrifice to care for children in the home are making an incalculable contribution not only to their children and their family but to society at large. They deserve respect and appreciation and even help, not to have their choice hedged up by those who are blind to all but market values.

For Sutherland Institute, I’m Bill Duncan. Thanks for listening.

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The research so far: Mom + Dad still best for kids

Family_playing_a_board_gameIn past decades, a large body of research has developed focused on the question of what family structures are most likely to promote child well-being. The basic consensus — based on comparisons of children raised by married biological parents, single parents, divorced parents, stepparents, etc. — is that children fare best, on average, when raised by their own biological parents in a stable marriage.

More recently, a different body of research suggests that this consensus would not apply if the population being compared were children raised by same-sex couples. In other words, the claim is that children raised by same-sex couples fare no differently than children raised by a biological mother and father. If true, this would be an important finding since the research on stepparenting (the situation most analogous to same-sex couples parenting a child, since at most one member of the couple would be biologically related) would seem to point in a different direction.

Of course, the importance of this finding, if established, would extend beyond the academy since the claim of “no differences” has been relied on by courts that have found that the U.S. or state constitutions require same-sex marriage. Indeed, the Supreme Court’s DOMA opinion seems to rely on this literature by implication in suggesting that children being raised by same-sex couples are harmed by the inability of the couple to claim the status of marriage, rather than inquiring whether any difficulties these children experience may come from separation from one or both biological parents or from a lack of relationship with either a mother or father.

Discordant notes

There has been some serious criticism of the same-sex parenting studies, however, because a number of analysts, representing diverse views on the political implications, have noted problems with sample sizes, non-random samples, poor or nonexistent comparison groups, etc. (See here, here, here, here and here.)

In 2012, Dr. Loren Marks at Louisiana State University published a detailed analysis of the studies relied on by the American Psychological Association for its support of same-sex marriage and found that the flaws in that research were so significant as to seriously call into question the validity of any conclusions derived from it.

Far more interesting was a new study released in the same journal as Dr. Marks’ report which attempted to correct the shortcomings of the previous literature by drawing on a much larger, representative sample, comparing child outcomes on more significant measures, and avoiding the problem of relying on reports of the adults raising the child. This study (and a follow-up study, using different comparison groups in response to critics of the initial research) demonstrated significant increases in problems for children raised by same-sex couples as compared to children raised by married biological or adoptive mothers and fathers.

This study, and to a lesser extent similar studies (here and here and here) suggesting children raised by same-sex couples don’t fare as well as children raised by married mothers and fathers, have been subjected to a firestorm of attacks (see also here, here, and here), including much ad hominem rhetoric and an apparently unprecedented and certainly highly unusual campaign of harassment and intimidation.

New studies

Now, three new studies by sociologist Paul Sullins, who teaches at the Catholic University of America, add to the data that seem to undermine the claim of “no differences.” Read more

Reflections from Rome: Inspiring conference focuses on the complementarity of men and women in marriage

humanumLast week my wife and I had the privilege of attending an historic international, interreligious colloquium in the Vatican.  Entitled Humanum: The Complementarity of Man and Woman, the conference explored the complementarity of men and women in marriage.  Participants came from countries all over the world and from more cultures and religious traditions than appear on those “Coexist” bumper stickers.  Cardinal Mueller and his colleagues were wonderfully gracious hosts.

If the subject had been theology, the conference might have taken on the feel of a debate.  But in talking about the unique value that women and men individually bring to marriage, to their children and to each other, the common ground was deep, broad and immediate.  The presentations from Christian faiths drew on patterns and scripture that were familiar, while each faith’s emphasis differed enough to prompt new reflection on how I could be a better husband and father.  Pope Francis’ opening speech was a clarion call to strengthen marriage for the benefit of children and society.  Catholic clergy have spent centuries systematically studying these things, and they lay out the rationale and richness of marital union.  Jewish humanum3leaders, like colloquium speaker Rabbi Lord Jonathan Sacks, blend scriptural detail, personal experience and their unique humor for a memorable portrait of spousal love and growth.  LDS representative President Henry B. Eyring shared much of the church’s Family Proclamation  though his speech may be best remembered for the personal expressions toward his wife and family which moved some of the audience to tears.

One presentation came from Daphne Sheng, a Taiwanese woman, speaking from her Taoist perspective.  I’ve made casual reference to Yin and Yang before, as perhaps you have, trying to use them as examples of some sort of fit between different things.  Our speaker shared the proverbial “rest of the story.”  Yin and Yang have something of each other within themselves, yet are also very different.  They fit and work together within the bounds of a circle.  So their differences matter and enable the fit, but so does the context in which they connect.  I can’t do the concept justice in a brief post like this one, but it gave me something new that I need to explore. Read more

Intergenerational families: Humanity’s keystone species

self-controlAt Yellowstone last summer, we heard about keystone species, “a species that has a disproportionately large effect on its environment relative to its abundance.” These species solve large ecological problems that would otherwise threaten the very existence of an ecosystem.

Consider the challenge of transmitting virtue. It was commonplace among the Founders of the United States to note that a free society requires a virtuous people. They accepted Edmund Burke’s observation: “Men qualify for freedom in exact proportion to their disposition to put moral chains upon their own appetites. Society cannot exist unless a controlling power is put somewhere on will and appetite, and the less of it there is within, the more there must be without.”

In an authoritarian state, social order of a sort is maintained by extensive controls from outside the individual. In a free society, virtue must be transmitted into the hearts of individuals—but not by the state. Consider this powerful observation of Professor Bruce C. Hafen:

[I]t remains fundamental to democratic theory that parents, through this institutional role of the family, control the heart of the value-transmission process. As that crucial process is dispersed pluralistically, the power of government is limited. It is characteristic of totalitarian societies, by contrast, to centralize the transmission of values. Our system thus fully expects parents to interact with their children in ways we would not tolerate from the state—namely, through the explicit inculcation of intensely personal convictions about life and its meaning. Read more