The Law: Whatever Federal Bureaucrats Declare It to Be?

Via the National Law Journal:

The United States Equal Employment Opportunity Commission (“EEOC”) reminded employers this week in no uncertain terms that they are required to provide transgender workers with access to bathrooms that corresponds with their gender identity. A failure to do so – the EEOC warned – runs the risk of violating Title VII of the Civil Rights Act.

Title VII prohibits employers—including federal, state, and local governments— from discriminating against employees on the basis of sex, race, color, national origin, and religion.

There are many reasons for opposing the North Carolina law that (along with nuking locally passed LGBT anti-discrimination provisions in the state) insists that restroom and locker facilities in government buildings and schools be determined by gender as specified on birth certificates. (The law, as the Washington Post confirms, lets private businesses continue to set their own rules for bathrooms and locker rooms, a point sometimes misreported elsewhere.)

But every bad state law is not open to the executive branch to give thumbs up or thumbs down—a power the Constitution gives to the judiciary, not the federal bureaucracy. And reinterpreting Title VII this broadly begs the question on what limits, if any, progressives think may apply to executive branch agencies.

At some point, a president not of liberal liking will obtain the White House and progressives will morph into strict constructionists who will deny they were ever anything but.

More. Yes, some of these challenges will end up before the courts, where they should be decided. But the federal government is threatening to cut funding to North Carolina’s schools based on the feds’ determination that the state’s law is invalid:

North Carolina receives more than $4 billion in federal education funding each year. Now the federal government is considering withholding that money because, the Justice Department says, the state has passed a law that violates the civil rights of transgender individuals by forcing them to use bathrooms that correspond to the sex on their birth certificates instead of their gender identity.

And this:

North Carolina is facing additional threats to its federal funding as two more agencies—the U.S. Department of Transportation and Housing and Urban Development—say they are reviewing the state’s controversial House Bill 2.

Furthermore. Pouring fuel on the fire, the Obama administration next issued a directive telling public schools throughout the U.S. to allow students to access school restrooms and locker rooms based on their gender identity. Meaning, to be blunt, penises in girls locker rooms. And any opposition, such as suggesting private changing/showering areas for non-transitioned transgender students, is prejudice, hatred, Jim Crow. End of discussion, you bigots.

Via Robby Soave at reason.com: Title IX Is a Dangerous Tool for Extending Transgender Kids’ Rights.

Via Tom G. Palmer:

This case of rule by decree and federal overreach is a very valuable gift to the Trumpanzees. The issues are not so easily sorted out and probably better addressed by using common sense in various ways.

Exactly. But inflaming the culture wars serves the interests of partisans on both the left and right.

From the comments: “In the early 80s the Reagan administration cut off highway funds for any state that didn’t raise its drinking age to 21. … Don’t pretend like there’s no precedent for the federal government making this kind of threat or that it’s only Democrats that have done it.”

Response from commenter Jared: “Balderdash. The drinking age was raised nationally by Congress—when it passed the National Minimum Drinking Age Act—and so the executive branch under Reagan was executing the will of Congress. In this case, Congress, even when the Democrats were in control, has refused to pass a transgender rights law. This directive is based on the Obama administration’s radical reinterpretation of the existing civil rights laws, in the face of congressional inaction — a very different situation, and one that represents a sweeping expansion of executive power.”

Indiana

Cruz was hoping the “bathroom issue” would make a difference in Indiana. But despite a final push, he lost big and then suspended his campaign.

Via Politico on why Cruz’s social conservative pandering fell flat in Indiana (and, really, most everywhere else):

The only problem with Cruz’s socially conservative message? The voters he has to win over [in Indiana] don’t like it. …

Today, vast swaths of the state’s Republican electorate, from Indianapolis to West Lafayette, have retreated from the culture wars. And like the 50s-era diner itself, Cruz’s dogged socially conservative message seems anachronistic—and perhaps a little tin-eared—to these fiscally conservative, socially liberal Republicans….

Along similar lines, Dave Weigel on why Cruz’s defeat in Indiana may also be the biggest electoral victory for transgender rights:

[Cruz] pummeled Donald Trump for supporting the rights of transgender people to use their adopted gender’s bathrooms. And then he lost in a landslide, and quit the presidential race.

I wish Kasich had competed in Indiana; the pact with Cruz was a bad idea.

On the other hand, hard to argue with Cruz’s takedown of Trump. If only they both could have lost!

More. “Many Republicans were surprised Mr. Cruz was the one in the large GOP field to wind up being Mr. Trump’s most formidable opponent,” the Wall Street Journal reports, noting:

The senator’s coalition never grew beyond a core group of dedicated social conservatives, leaving Mr. Trump to pick up support from voters who might have otherwise supported one of the other 14 Republicans who have ended their presidential campaigns.

Cruz’s social conservative bloc was large enough to make him the designated runner up in a crowded, diffuse field. But as the political power and popular appeal of the religious right wanes in the GOP, Cruz as the alternative meant votes going to Trump.

Furthermore. Via a Wall Street Journal editorial, A Cruz Postmortem:

Mr. Cruz’s pandering to the right also sent a signal to moderate and somewhat conservative Republicans that he didn’t need their support. Mr. Trump split the “very conservative” vote with Mr. Cruz but crushed the Senator among more moderate voters. That doomed Mr. Cruz in the East in particular, but also in Indiana.

The Texan’s lost opportunity was to expand his appeal beyond his most conservative base of support and coalesce mainstream Republicans. He never tried to break out of his factional ghetto, as if excoriating the establishment and transgender bathroom laws could motivate a majority to defeat Mr. Trump’s plurality.

The conservatives aghast at Mr. Trump should appreciate the irony that even as Mr. Cruz hoped to produce a new conservative era, he helped wreck the best chance for conservative reform in years.

Indeed. And the WSJ rightly points out the culpability of both Cruz “and his allies at the Heritage Foundation and the Mark Levin talk-radio right.”

ACLU Would Compel Therapists to Counsel LGBT People

The ACLU condemns a Tennessee law that allows counselors and therapists to decline to provide their services to a client for “goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist,” as long as the professional recommends somebody else who can help the client.

Who would want a therapist that doesn’t want you as a client because you’re gay or transgender? Same people who want someone opposed to gay weddings to cater their gay wedding.

As Scott Shackford ‏blogged, “Tenn.’s Discriminatory Counseling Law Protects LGBT Folks from Getting Bad Advice.”

More. In a fundraising email, the Gay & Lesbian Alliance Against Defamation (GLAAD) declares, “this week in Tennessee, Governor Bill Haslam signed a dangerous bill allowing medical professionals to refuse mental health services to LGBT patients.”

Gay rights advocates used to ask those who encouraged gays to stay in the closet and try to be straight, “Would you want your sister to marry a gay man?” I suggest asking Zeke Stokes, GLAAD’s vice president of programs, whose signature is on the email, “Would you want gay kids to be sent to an anti-gay shrink?” Who, of course, would be prohibited from indicating to potential clients that he or she is not accepting of homosexuality.

Furthermore. No, I don’t buy the argument that the law means suicide hotlines will let gay people kill themselves because the state isn’t compelling them to provide mental health services to LGBT people. Because, you know, Jim Crow.

The Post-Trump GOP

Is there anything positive in the now-likely nomination of Donald Trump? Well, the New York Times reports that Donald Trump’s More Accepting Views on Gay Issues Set Him Apart in GOP. To which Democratic partisans respond in unison, “oh yeah, Hillary is better.” And on that front, she is (after a circuitous route based on the nation’s growing acceptance of gay legal equality).

But that’s not the question; the issue here is what Trump signifies for the GOP, and despite his likely drubbing in November (with the proviso that anything could happen in an election), we can at least say that classic LGBT fear-mongering of the Ted Cruz variety didn’t work, with even white evangelicals treading to Trump. That, if nothing else, is a positive change that could augur well for the GOP post-Trump.

More. From the NYT:

Mr. Trump is not as embracing of gay rights as the Democratic candidates are; he said during this campaign that he believes that marriage is between a man and a woman…. But he does not emphasize marriage as an issue, and he makes no mention of it, for example, on his campaign website, which focuses on issues like immigration and trade.

And Mr. Trump, who has inflamed tensions with almost every group, from Hispanics to women to African-Americans, has avoided attacking or offending gay men and lesbians during the campaign.

Cruz is hoping the “bathroom issue” will make a difference in Indiana. We’ll see.

Also, I’m no Trumpian but I did get a kick out of The Ballad of Lying, Cheating, Stealing Ted.

Update: Despite a final push on the restroom issue, Cruz loses big in Indiana.

And Via Politico:

The only problem with Cruz’s socially conservative message? The voters he has to win over [in Indiana] don’t like it. …

Today, vast swaths of the state’s Republican electorate, from Indianapolis to West Lafayette, have retreated from the culture wars. And like the 50s-era diner itself, Cruz’s dogged socially conservative message seems anachronistic—and perhaps a little tin-eared—to these fiscally conservative, socially liberal Republicans….

On the other hand, hard to argue with Cruz’s takedown of Trump. If only they both could lose!

Liberalism: What Went So Terribly Wrong

Via Emmett Rensin at Vox.com, The smug style in American liberalism:

In 2016, the smug style has found expression in…a foundational set of assumptions above which a great number of liberals comport their understanding of the world. It has led an American ideology hitherto responsible for a great share of the good accomplished over the past century of our political life to a posture of reaction and disrespect: a condescending, defensive sneer toward any person or movement outside of its consensus, dressed up as a monopoly on reason.

It’s so true, but liberals (actually, illiberal progressives would be more accurate) can’t see it; their unquestioning sense of moral superiority and their “Just Do What We Say” assumption of a right to dictate to others is the ocean they swim in.

More. George Will on the four key tenets of progressivism: (1) history has a destination; (2) progressives uniquely discern it; (3) politics should be democratic but peripheral to governance, which is the responsibility of experts scientifically administering the regulatory state, and (4) enlightened progressives should enforce limits on speech in order to prevent thinking unhelpful to history’s progressive unfolding.

Furthermore. Via The Atlantic, on why a high school senior feels alienated from activist groups that share causes in which he believes:

“I genuinely cared about these causes—still do,” he wrote, referencing everything from anti-racism to LGBT rights to reproductive health. “I believed I was doing something noble. At the same time,” he added, “a large part of me was not quite in agreement with some of the views and concepts espoused by social-justice groups. Their pro-censorship tendencies, fixation with intersectionality, and constant uproar over seemingly trivial and innocuous matters like ‘cultural appropriation’ and ‘microaggressions’ went against my civil-libertarian sensibilities.” …

“When I go off to college next year, I honestly don’t know where I’m going to fit in… The only political/social group accepting of my views are normally libertarians,” he wrote. “For the most part, these campus activism groups have my sympathies. I just wish that they didn’t have such a hostile attitude towards free speech and didn’t dismiss opposing viewpoints based on the person’s identity.”

And as for the next generation of progressive leadership, Protesters shouted obscenities in an effort to silence the speakers, saying they espouse “hate speech”. And they are utterly mystified when their hypocrisy is pointed out.

Plus, comedian Steve Crowder’s social justice warrior takedown.

The Best Man

John Kasich is hitting the right notes in calling for both religious conservatives and progressive LGBT activists (and their followers) to stop behaving like authoritarians, so of course both religious conservatives and progressive LGBT activists (and their followers) mock and condemn him—his advice would disrupt their mutual grievance games for fun, profit and power over others.

Via a Washington Blade report with the misleading headline (because he’s not addressing discrimination against employees), Kasich: LGBT people who face discrimination should ‘get over it’, discussing Kasich’s position on small business owners who don’t want to provide services to same-sex weddings:

Urging people to “calm down,” the governor said the country needs to protect religious liberty, but also can’t allow discrimination, so must “strike a balance” on the issue. “What I like to say is, just relax, if you don’t like what somebody is doing, pray for them,” Kasich said. “And if you feel as though somebody is doing something wrong against you, can you just for a second get over it because this thing will settle down?”

Kasich lamented the issue has “become a wedge issue that can be exploited by people on both sides,” saying the country should be the United States and not the “Divided States.”

He’s right, of course. But good luck with that position in today’s polarized politics.

Narrative Fail

Good for Whole Foods: We’re suing the gay activist who claimed we sold him a cake with a slur written on it — and we have video.

Related: Useful advise for progressive LGBT activists — 5 Tips For A Successful Social Justice Warrior Cake Hoax.

On a tangential note that exposes another front of progressive LGBT hypocrisy, Whole Foods properly noted that “Out team members do not accept or design bakery orders that include language or images that are offensive.” To which David Boaz wisely replied, “I fully support Whole Foods’ right to refuse to bake cakes with messages that offend its moral values.”

More. Flashback: Anti-gay tipping hoax. And this fake anti-gay hate crime at the University of North Dakota. There was also this staged hate crime, and this one, among others. On some level these are just deeply disturbed people, but the media’s initial rush to embrace them is telling. And you can’t dismiss the culture of victimization that spurs them on.

More. And speaking of the culture of victimhood, there’s little daylight between outright hate-crime hoaxers seeking the exultation of victim status, and those who portray themselves as the victims when they bring down the power of the progressive state against those whose religious beliefs would preclude them from providing expressive services to same-sex weddings, if they had the liberty to follow their consciences.

Furthermore. North Carolina restroom hoax:

A transgender woman says she was “humiliated beyond belief” when security in Durham, North Carolina, escorted her out of a public women’s restroom, but the city says the incident never happened. …

“We thoroughly investigated the claim by speaking with bus operations and police department staff, since she claimed that police escorted her from the premises,” said Beverly B. Thompson, director of public affairs for the city of Durham, in a statement. “We also reviewed the security video, which clearly showed the person entering and exiting the restroom and walking away from the station with another person. We can’t find anything, including the interviews and the video, to support the person’s claim that such an incident occurred.”

No One Is on the Moral High Ground Here

The outing of the son of Mississippi’s GOP governor, after he signed a religious liberty bill, raises the usual issues. If the son of Gov. Phil Bryant wanted to make his sexual orientation public, he would have done so. His outing (assuming he is gay) is an attempt to embarrass the governor.

It’s at best a ham-fisted attempt to “educate” the benighted masses that gays are in all families. To the extent anyone pays attention, it will further polarize, with defenders of the Mississippi law seeing it as an exceedingly ugly tactic by opponents and thus feeling reinforced in their beliefs.

Personally, I believe it’s wrong for small business owners with religious convictions against same-sex marriage to be forced to provide expressive services to same-sex weddings (as they are in states and localities with LGBT anti-discrimination measures that apply to “public accommodations”). But the Mississippi law is in many respects “problematic” (as progressives like to label things they want to suppress) and quite probably unconstitutional. That’s because, among other reasons, it’s a mishmash of agenda items, including an unenforceable declaration that “marriage is or should be recognized as the union of one man and one woman [and that] sexual relations are properly reserved to such a marriage.”

The “religious liberty” battle now roiling through the states could have been avoided with a bit of common sense, such as an acceptance of religious exemptions in LGBT anti-discrimination matters. But progressive activists have made it clear they will tolerate no dissent on this.

I wish that the federal Religious Freedom Restoration Act, passed in 1993 with support from many Democrats who would now be required to strenuously oppose it, applied to states and localities. The law holds that legislation burdening the exercise of religion on behalf of a compelling government interest must be the least restrictive way in which to further the government interest. But in 1997 the U.S. Supreme Court held that RFRA could only be applied to federal legislation.

If that were not the case, it would have been interesting to see how RFRA might have played out in religious liberty disputes based on state and local anti-discrimination laws. (Subsequently, attempts to pass statewide RFRAs based on the federal model have been treated by opponents as the second coming of Jim Crow.)

More Evidence: All About the “T”

The news media is all over that Bruce Springsteen cancels North Carolina concert over ‘bathroom law’ (via CNN.com):

Springsteen and his E Street Band were slated to perform at the Greensboro Coliseum this Sunday. The roughly 15,000 ticketholders will all be eligible for a refund. The newly enacted law requires individuals to use bathrooms that correspond to the gender on their birth certificate, and has drawn fierce criticism for excluding legal protections from gay and transgender people.

The North Carolina law, as the article notes in a secondary fashion, invalidates a comprehensive LGBT anti-discrimination measures passed in Charlotte and prohibits any future local measures in the state. But the reporting and commentary is fixated on the bathroom issue.

Part of this is because transgender bathroom and locker room use has—along with forcing small businesses with religious objections to provide expressive services to same-sex marriages—become the dominant LGBT issue of the day. Employment discrimination, what’s that?

Along those lines, the Washington Post recently informed us that queasiness over using restrooms with the opposite sex is simply a matter of socialization and enculturation:

A bathroom bill wouldn’t be raised in some parts of Europe where restrooms are unisex. But the public bathroom here has regularly been a location of consternation for the puritanical, puri-panic-al United States: an American conundrum resulting from American sensibilities and American history.

Which is why so many suspect that gender-neutral bathrooms is the actual aim of progressive activists, and are responding with such vehemence.

Is this rightwing manipulation? Sure. But leftwing overreach has opened the door that reactionary politicians are now walking through.

P.S., I’ve traveled throughout Europe and don’t recall shared “unisex” (the author means mixed sex) restrooms, even in Scandinavia. But hey, if it serves the narrative.

More. Gay Washington Post columnist recounts:

I was having dinner with some LGBT colleagues when I excused myself and headed to the facilities — one labeled for men, the other for women, facing each other across a small hallway. Between them stood an employee, who looked me up and down and opened the men’s room door for me.

How polite? Hardly. Instead of thanking him, I explained how presumptuous he had been in deciding my bathroom preference for me. I tried in vain to explain how “gender identity” (the way individuals perceive themselves) is different from “biological sex” (generally indicated by a person’s genitalia, or sex assigned at birth).

Yes, for many progressives the aim is gender-neutral restrooms.

Culture Wars Redux

Via the Washington Times:

Mississippi bakers, florists and photographers who want to avoid serving gay weddings for religious reasons can breathe easy — at least for now.

Calls for a boycott and repeal campaign followed after Republican Gov. Phil Bryant signed a religious-freedom bill Tuesday that protects small-business owners from facing penalties for declining to participate in same-sex ceremonies.

Chad Griffin, president of the Human Rights Campaign, the nation’s largest gay advocacy group, called the bill “horrific” and lambasted Mr. Bryant while vowing that “his state will suffer.”

Since Mississippi has no LGBT anti-discrimination law, the religious liberty law was unnecessary; no one is forcing small businesses with religious objections to provide services to same-sex weddings.

But in a saner, less mendacious world, tolerance for religious conservatives — particularly as regards expressive services for same-sex weddings — wouldn’t be viewed as “horrific.”

The irony is that where religious liberty is a legitimate issue — in states and localities where LGBT anti-discrimination laws are used to punish and destroy small businesses that offend progressive sensibilities — religious freedom protections won’t be passed.