The Transgender Order Deserves Its Fate

The rollback of the Obama’ administration’s nationwide decree that public school bathrooms and locker rooms must be available to students based on their gender identity has, predictably, caused an uproar among LGBT and other progressives (“a blind and cruel attack on young children,” said the Human Rights Campaign’s Chad Griffin).

But the over-reaching, over-bearing, probably unlawful order, blocked by a court from taking effect in part because it was issued without going through the standard proposal and public comment process for federal regulation—which would have highlighted its dubious interpretation of Title IX—was always about igniting the base and stoking culture-war polarization, to the hoped-for electoral advantage of the Democrats versus the hateful bigots (i.e., Republicans).

The Cato Institute’s David Boaz writes:

Devolving power from Washington to states and local communities can also help to ease conflicts ranging from gun rights and school locker rooms to environmental protection. While Education Secretary Betsy DeVos may have stated the problem awkwardly, it’s true that the people of Manhattan and Montana have different attitudes and experiences regarding guns. Maybe they should be able to set different rules. In 2016 the Department of Justice and the Department of Education issued “guidance” to the 13,500 school districts across the United States on how they should manage access to locker rooms and bathrooms in 99,000 public schools. Instead of a rule issued by faceless bureaucrats in Washington, why not let the people of the 50 states and thousands of communities talk through that issue and come to their own evolving answers?

DeVos herself released a statement that said, in part:

This is an issue best solved at the state and local level. Schools, communities, and families can find – and in many cases have found – solutions that protect all students. …

I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

As others have pointed out, while the left likes to focus on bathrooms, where people don’t publicly undress, the real issue is locker rooms, where nudity is part of the terrain. An anatomical male body on a transwomen who hasn’t surgically transitioned (or, more to the point, a transgirl in a public school girls locker room), and transmen/transboys in the opposite situation, is the issue. Offering the accommodations of a gender-neutral individual restroom, or changing in a private space (and, if necessary, a private shower) is not equivalent to the racial bigotry implied by the phrase “separate but equal.” In these circumstances, it’s often the reasonable option.

And sorry, but declaring that we should all—teenagers included—”get over” our unease with anatomically discordant nudity in public facilities (because, bigotry) is not a winning argument. As instapundit Glenn Reynolds likes to say, “If you want more Trump, this is how you get more Trump.”

11 Comments for “The Transgender Order Deserves Its Fate”

  1. posted by Jorge on

    Mmm, I’ll rely on the AP’s story. I think it gets a little closer to the source.–politics.html

    In a letter to the nation’s schools, the Justice and Education departments said the earlier guidance “has given rise to significant litigation regarding school restrooms and locker rooms.”

    The agencies withdrew the guidance to “in order to further and more completely consider the legal issues involved.”

    I have a question. If the Trump administration wants to leave it to the states, as Education Secretary DeVos and Attorney General Sessions are quoted as saying, and the states shirk their duty, does that mean the federal government can still sue them?

    “Anti-bullying safeguards would not be affected by the change, according to the letter.” Well that’s rather circular. I hope the education secretary means what she says so that we are not going to allow transgender students to be bullied by teachers or administrations.

    By speaking, they have committed themselves to the idea that it is the big federal government’s responsibility to paternalize states and school districts (yay! yay!). It is only a matter of when they should step in. But I am concerned they won’t enforce that. This will in practice give a blank check, unless there is a mechanism in place to create a punishment for bullying by students and administrators. Where is that?

  2. posted by Tom Scharbach on

    Repeal was inevitable, a consequence of the election. Repeal was a plank in the 2016 Platform, was a campaign promise of President Trump, and is supported by every faction in the Republican coalition.

    The fight now goes to the states and local communities.

    We’ve been there before many times during the last 50 years. We’ll win some, lose more, and ultimately prevail just as we did with sodomy, DADT repeal and marriage equality.

    A quick summary of the work we have to do this year fighting off Republican “massive resistance” bills (with more coming, almost certainly):

    Adult bathroom bills – 21 bills in 14 states.
    Student bathroom bills – TBD
    FADA clones – 2 bills in 2 states
    Identification bills – 3 bills in 3 states
    Health Care Access – 3 bills in 3 states

    RFRA modifications – 5 bills in 5 states
    FADA clones – 7 bills in 6 states
    Health Care Access – 1 bill in 1 state
    Marriage Exemptions – 14 bills in 11 states
    Adoption Bans – 5 bills in 4 states
    Bills Banning Local Protection – 6 bills in 4 states
    Other/Miscellaneous – 22 bills in 17 states

    We’ve got our work cut out for us in a lot of states. Get to work.

  3. posted by Jorge on

    And sorry, but declaring that we should all—teenagers included—”get over” our unease with non-anatomically-correspondent nudity in public facilities (because, bigotry) is not a winning argument. As instapundit Glenn Reynolds likes to say, “If you want more Trump, this is the way you get more Trump.”

    In social work, it is believed that people are motivated to change when they are uncomfortable. Well, people felt very uncomfortable about bathrooms and locker rooms–and here I thought I *wanted* more people to talk about LGBT issues at work.

    Appeals to move beyond one’s discomfort and fight against prejudice and bigotry are pretty old. They’re effective if they’re used at the right time, in combination with other facts and arguments. I would sell the alternative as fairness, as about meeting each person’s needs, fulfilling our duties, and as easy to accomplish. The discomfort has to be exposed as illogical, so that people experience the discomfort of holding opinions that do not make sense. Without that important step, you are criticizing people for holding opinions that make a lot of sense. That’s a problem. (As an aside, because this comes up very often here, let me remind my fellows that trying to argue religious orthodoxy with a heretic is a trap; you usually wind up doing the reverse.)

    Appeals against bigotry have become less persuasive over time because they’ve become less credible. For as long as I can remember there has been a side of anti-racism (etc.) that was less about shared American values and more about partisanship and ideology. The tipping point was the argument that criticism of President Obama was motivated by racism, that’s about when the right really became focused on challenging the credibility of appeals against bigotry.

  4. posted by Mike Williams on

    Who wants to bet that Miller is repressing his homosexuality? The guy totally reminds me of Roy Cohn, another destructive character. This would explain Miller’s anger and hate (actually self-loathing) that has to manifest itself with bigotry – with all this hate as his mission, he’ll argue he’s too busy to date. Someone out to do all of us, especially Miller, and out him. Someone should hack his computer to see what pornography sites or anonymous sex sites he visits.

    • posted by Tom Scharbach on

      Mike, Stephen worked in the gay rights movement as early as the 1980’s, working with GLAAD as the groups media head, and received the 1990 GLAAD Media Award for Outstanding Volunteer Services.

      Shortly thereafter, Stephen had a fall out with GLAAD over the group’s liberalism, and left GLAAD, apparently with some bitterness. After he left GLAAD, he began to write about matters gay/lesbian in gay media, including Christopher Street, where he was a contributing writer on staff for a number of years. Since the mid-1990’s, Stephen has been involved with IGF. He self-describes as a “recovering progressive” (hence his laudatory posts about any gay/lesbian who was once lost in leftism but now is found in right-thinking) and his views align with LCR and CATO with a twist of bitterness not present in either group.

      If you want to understand Stephen’s take on the gay/lesbian rights movement, read “Who Stole the Gay Movement?“, written in 1994 for Christopher Street and republished in the early days of IGF.

      His “anger and hate” is directed at the left/liberal/progressives who have dominated the gay/lesbian rights movement for the last 40-odd years, and he seems particularly angry and bitter about the fact that gays and lesbians working within the Democratic Party turned that party on LGBT issues over the course of 30-plus years of work, while the Republican Party cemented itself into anti-equality. He despises left-leaning LGBT groups like HRC, the Victory Fund, et al, and blames left/liberal/progressives for the Republican Party’s descent into hard-core social conservatism.

      You just have to read past all the anger and bitterness to get to the substance of Stephen’s posts, which are sometimes thought-provoking.

      But closeted he is not.

    • posted by Walker on

      Umm, it’s called the Independent Gay Forum. An odd place to repress one’s homosexuality. Not to mention what Tom Scharbach says, and Miller’s former weekly column in the New York Native.

    • posted by JohnInCA on

      Perhaps he’s confusing IGF’s Stephen Miller with the younger Stephen Miller that’s in the Trump administration and recently been doing the news circuit?

  5. posted by Tom Scharbach on

    I have a question. If the Trump administration wants to leave it to the states, as Education Secretary DeVos and Attorney General Sessions are quoted as saying, and the states shirk their duty, does that mean the federal government can still sue them?

    No. Transgender rights are non-existent at the federal level. The lawsuits will come (and they will come, trust me) from parents of transgender children.

  6. posted by JohnInCA on

    This probably just shows my age, but has there *ever* been a “leave it to the States” argument that want synonymous with “let us be assholes in peace”?

    Segregation, abortion, birth control, voting rights, sodomy laws, marriage bans, anything to do with trans folk… Heck, after DADT was repealed there was a (failed) effort to re-institute it for the Texas National Guard.

    They say “leave it to the States” not because they actually think the States will do a better job solving problems, but because they deny the “problem” is one that *should* be fixed.

  7. posted by Jorge on

    No. Transgender rights are non-existent at the federal level. The lawsuits will come (and they will come, trust me) from parents of transgender children.

    But I remember former Attorney General John Ashcroft doing a big press conference saying he was prosecuting a hate crime murder, when there really was no federal hate crime law at the time. If he can pull that rabbit out of his ass, what’s to stop Devos?

    Doesn’t the Education Department have the power to yank the money from the schools for failing to do something basic? Now let’s see if I can find a rule for that.

    “Laws & Guidance
    Legislation, regulations, guidance, and other policy documents can be found here for the Every Student Succeeds Act (ESSA), and other topics.”

    “Every Student Succeeds Act?” That sounds like it might be a promising piece of colorblind, one size fits all legislation. “The previous version of the law, the No Child Left Behind (NCLB) Act, was enacted in 2002.” Even better!

    “Please note that in the U.S., the federal role in education is limited. Because of the Tenth Amendment, most education policy is decided at the state and local levels.” Yeah whatever.

    According to the DOE’s website, No Child Left Behind2 “Requires—for the first time—that all students in America be taught to high academic standards that will prepare them to succeed in college and careers.”

    “States must assess all students.” If schools experience an elevated levels of truancy in transgender students (impacting these all-important tests) because of institutional discrimination, schools are breaking federal law and can get money withheld. We’ll have to get Besty DeVos, Charter Mom involved to change the regulations to make this clear.

    Something else caught my eye that reminded me of something. The Americans with Disabilities Act applies to transgender students. Transgender activists aren’t going to like hearing that because they spent all that time de-DSM-ing transgender people, but the case law and a standing executive order in my state recognizes defines transgender under both gender and disability for the purposes of civil rights protections. The US Department of Education is not obligated to listen to transgender activists. Their constituency is the student, and it can decide to use one law and not the other. Everyone forgets the ADA.

    You think it’s questionably acceptable for the Obama administration to say transgender is sex? Well nothing can stop the Trump administration from saying transgender is ADA. And the ADA only cares about results–accommodations can be “reasonable”.

  8. posted by Tom Scharbach on

    And, as an aside, we should not forget the fact that we are likely to see bruising political battles in the 2018 election cycle. We are going to have to work hard, and work smart, up and down the line.

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