Peter H. Schuck, emeritus professor at the Yale Law School, on why Obama was wrong to impose a national rule on school bathrooms without public debate:
Do identity-based bathrooms meet this demanding [civil rights] test? The administration’s letter says yes. The subtext is that skeptics must be yahoos and bigots….
Here are just a few questions that people might have asked before making up their minds. How uncomfortable are people with the prospect of those with different anatomies sharing their bathrooms? Is this discomfort likely to grow or decline? Since gender identity cannot be confirmed before entering bathrooms, how great is the risk of voyeurism or other abuses? How costly will it be to provide gender-neutral bathrooms, and how would people of all genders feel about such alternatives?
And Schuck doesn’t even address the issue of public school locker rooms, where these questions are even more pertinent.
16 Comments for “Why Obama’s Bathroom Decree Is Counter-Productive”
posted by Tom Jefferson III on
If the folks backing the State bathroom bills were willing to having a civil and serious conversation……
Or the folks that campaigned against city civil bill…..
posted by Tom Scharbach on
As TJ III says, if the “bathroom bill” advocates were willing to have a civil and serious conversation …
… then I don’t think that the uproar we are currently witinessing would exist.
Right now, though, the “bathroom bill” advocates are bound and determined to follow North Carolina’s lead and mandate public bathroom use according to birth gender, so none of questions asked by Professor Schuck:
are being asked or are even relevant.
If birth gender is the only relevant factor (requiring Republican Representative Ros-Lehtinen’s son, Rodrigo, to use the women’s bathroom), as is the case in North Carolina and in almost all of the “bathroom bills” proposed around the country, none of the questions even make sense, unless the purpose of the questions is to demonstrate the absurdity of the laws.
Professor Schuck’s questions make no sense in the “bathroom bill” context because the bills are inherently nonsensical.
I don’t believe that the bills were intended to solve a problem, because transgender men and women have been using bathrooms for years without creating a problem or even being noticed.
The bills are political stunt, pure and simple.
posted by Mike in Houston on
1st – it’s not a decree. His letter was a long-worked on clarification of a Title IX regulations in line with his Administration’s policies.
2nd – by provoking the hysterics that it has, the conversation is being had. What critics don’t like is that the conversation is framed objectively and that the ridiculous nature of the bathroom meme is being shown for what it is.
posted by Doug on
The North Carolina legislature was called into special session and voted on the law with NO PUBLIC DISCUSSION at all. What’s your point Stephen.
posted by Houndentenor on
Silly, Doug. it’s okay when Republicans pass bills without discussion because reasons.
posted by Tom Scharbach on
The pervasive silence from Republican-aligned “libertarians” on HB2 and similar is telling, is it not? Search CATO “Publications” for comment on the state-level “”bathroom bills”, for example, and you’ll find nary a word of criticism.
You would think that HB2 and other Republican-proposed bills might offend at least some libertarian principle or other, and be worthy of notice, given the uproar in the country. Apparently not.
posted by Tim on
http://www.cato.org/publications/commentary/should-feds-decide-transgender-bathroom-issue
posted by Tim on
http://www.cato.org/blog/bathroom-battles-why-we-need-school-choice
posted by Tom Scharbach on
Tim, both articles you cite have much to say about states rights and are critical of national resolution of the issue, but neither is critical of — or even discusses the wisdom of — HR2 or similar proposed laws around the country.
I read the CATO articles before I observed: “Search CATO “Publications” for comment on the state-level “”bathroom bills”, for example, and you’ll find nary a word of criticism.” It is because I read the CATO articles that I made the observation.
Its possible that I missed an article — I don’t pretend to me omniscient — but neither of these two articles counter the point I made. In fact, like the other CATO articles concerning the “bathroom bills”, the articles you cite support the point I made.
I suppose that there might be an article or two out there from a Republican-aligned “libertarian” pointing out the folly of HR2 and similar proposed bills around the country. But the volume is indiscernible in the midst of the cacophony about the school letter.
posted by Tom Scharbach on
Tim, here’s the problem: As was the case with the anti-marriage amendments, the “bathroom bill” section of HB2 (and most similar proposed legislation) presents a case of direct discrimination by the government, something that runs afoul of libertarian principles. In both cases, criticism of direct government discrimination from Republican-aligned “libertarians” (CATO, IGF, Reason) ran the gamut from non-existent to so muted as to be non-existent. The question is “Why?”
I think that there is a reason for this — the “libertarians” aligned with the Republican Party understand that HB2 and the hundreds of other anti-equality bills surfacing in state legislatures are critical to rousing the Republican base in this election, and Republican-aligned “libertarians” will “go along to get along” so as not to upset the Republican apple cart, just as they did with respect to the anti-marriage amendments a decade ago, for the same reasons.
But I’ve been around the track too many times, perhaps, and I’d be interested in knowing if something else is driving the silence.
posted by Houndentenor on
As if it were possible to have serious and rational debate with the religious right.
posted by JohnInCA on
Any serious discussion would include people from schools/cities/states where trans* folk already use their preferred bathroom.
Any serious discussion would quickly reveal that none of the imagined problems are real.
Any serious discussion would address the consequences of demanding transmen to use the women’s restroom, including normalizing male-identifying people using the women’s restroom (you know, the problem these “bathroom bills” are supposed to fix?)
Is there any wonder that the people in favor of forcing transmen into the women’s room have no interest in a serious conversatin?
Is there any wonder there’s been no interest in serious discussion from the hyperventillating right?
posted by Jorge on
“Under the administration’s novel reading of the law. . . . The only value in play here is transgender people’s desire to affirm their gender identity during their few minutes of bathroom use. All other concerns — about privacy and modesty in a setting that most people consider almost as safe and intimate as their bedrooms — are beside the point. A legal right trumps any other non-right claim, and those who disobey may suffer serious sanctions.”
I truly hate this sort of reasoning. And this is close to the reason why:
“I don’t know the answers to these questions, but — and this is the key point — neither do the agencies that issued their Colleague letter. And without a public conversation to find those answers, their policy may be wrong.”
But I am not worried. Our next president will have a big mouth, and he will know how to use it.
posted by Jorge on
As TJ III says, if the “bathroom bill” advocates were willing to have a civil and serious conversation …
… then I don’t think that the uproar we are currently witinessing would exist.
I disagree. Exactly how much hate speech has Caitlyn Jenner received in the past year? The only thing I’ve heard are her social and political disagreements with other transgender people.
That tells me that there is currently a state in which transgender lives are talked about in a civil manner. that tells me that the backlash exists for other reasons.
There was little to no backlash against the North Carolina boycotts, no counter boycott movement against Bruce Springstein, Paypal, the State and City of New York, or a number of other performers, businesses, and local governments that opted to condemn North Carolina’s bathroom bill. Only after the Obama administration weighed in did we see a movement to boycott Target for implementing a like-minded policy. Why is it that Trump did not suffer the same wrath for enacting the same exact policy even earlier? Do you think maybe people think Republicans are more trustworthy on social issues than the average person?
posted by Tom Jefferson III on
The Cato Institution dosnt want to upset a key player in the GOP coalition, so they frame the issue in such a way as to avoid dealing with the fact that government sanctioned discrimination, even at the state level, is totally againt what the libertarian movement claims to stand for.
posted by Tom Jefferson III on
also the office politics at the Cato Institution is such that the group is constantly fighting over whether or not its a libertarian think tank or a conservative.
Their is potentially more money to be made by trying to be both at the same time.