Op-ed: The bathroom putsch

  • By Rich Lowry
  • Wednesday, May 18, 2016 2:57pm
  • Opinion

The authors of The Federalist Papers neglected to explain the fearsome powers that inhere in the “Dear Colleague” letter under our system of government.

It is the instrument by which middling bureaucrats impose their will on the nation, as the assistant secretary for civil rights at the Department of Education and the principal deputy assistant attorney general for civil rights at the Department of Justice just did in the matter of transgender bathroom policy in our schools and colleges.

The transgender edict is a perfect distillation of the Obama administration’s centralizing reflex, highhanded unilateral rule and burning desire to push the boundaries of cultural change as far as practical in its remaining time in office.

There is no obvious need for a continental nation of more than 300 million people, with more than 14,000 school districts, to have one rule imposed from above on how to handle the sensitive (and suddenly all-consuming) question of which bathrooms transgender students have access to. Communities should be free to formulate their own policies, in accord with their own mores and particular view of what makes sense.

The Obama administration has decided that such localism, allowing for experiment and flexibility, is impermissible under federal law. Its letter is backed by the implicit threat of withdrawal of federal funds (a more appropriate salutation might have been “To Whom It Concerns — Or Else”). The letter contends that Title IX, the federal statute banning sex discrimination in education, mandates its preferred transgender policy.

Yet sex is different than gender identity (as all viewers of “I Am Cait” are supposed to know). If Congress had meant in 1972 — when the current debate was unimaginable — to cover discrimination against the transgendered in the statute, it would have included language to that effect. Or it could have amended the statute at any time. It didn’t. But no matter. Now a letter from a couple of federal mandarins carries as much practical power as a law duly passed by Congress and signed by the president. It is government by epistle.

Whatever one makes of the biology or psychology involved, transgender students deserve to be treated with respect. But it’s not unreasonable to worry about having biologically male students in the same restroom as girls, and vice versa. Somehow, we can assume, schools will figure this out. An obvious compromise is the single-occupancy bathroom, which protects transgender students from harassment and addresses privacy concerns for other students.

This isn’t good enough for the Obama administration. Its diktat effectively requires schools to allow boys identifying as girls into girls’ bathrooms and locker rooms, as well as girls’ dorm rooms and sports teams.

It is infused with a radical spirit. Gender identity is fluid and entirely subjective, the letter makes clear, referring “to an individual’s internal sense of gender.” As soon as a student notifies a school of his or her changing status, it “will begin treating the student consistent with the student’s gender identity.” (It’s easy to imagine scenarios for abuse — if an unscrupulous women’s college basketball team ever wants to topple the dominant UConn program, it should find male players who identify as female for a season.)

The sweep of the measure is symptomatic of the administration’s moral fervor on an issue that was barely on anyone’s radar screen a few years ago. In announcing a lawsuit against the state of North Carolina for an allegedly retrograde bathroom law — i.e., under it, people use facilities matching their birth sex — Attorney General Loretta Lynch compared the state’s action to Jim Crow and resistance to Brown v. Board of Education. She sounded ready to send the 101st Airborne to the bathrooms of Raleigh.

By casting the issue as the next great civil-rights crusade, Lynch and the administration delegitimize the opposition, and prepare the ground for treating traditional beliefs about the immutability of sex as thought crimes. Strong letter, no doubt, to follow.

Rich Lowry can be reached via e-mail: comments.lowry@nationalreview.com.

More in Opinion

A sign welcomes people to Kenai United Methodist Church on Monday, Sept. 6, 2021 in Kenai, Alaska. (Ashlyn O’Hara/Peninsula Clarion)
It’s time for a federal law against LGBTQ discrimination

When my wife and I decided to move to Alaska, we wondered if we would be welcome in our new neighborhood.

Terri Spigelmyer. (Photo provided)
Pay It Forward: Instilling volunteerism in the next generation

We hope to have instilled in our children empathy, cultural awareness, long-term planning and the selflessness of helping others

Hal Shepherd in an undated photo taken near Homer, Alaska. (Photo courtesy of Hal Shepherd.)
Point of View: Election integrity or right-wing power grab?

Dr. King would be appalled at what is happening today

Nancy HIllstrand. (Photo provided)
Point of View: Trail Lakes is the sockeye salmon hero, not Tutka Bay

Tutka hatchery produces a pink salmon monoculture desecrating Kachemak Bay State Park and Critical Habitat Area as a feed lot

A resident casts their vote in the regular municipal election Tuesday, Oct. 6, 2020 at the Kenai Peninsula Fairgrounds in Ninilchik, Alaska. (Photo by Megan Pacer/Homer News)
Alaska Voices: Break the cycle of failure, debt in 2022

Today, all Americans are coerced, embarrassed or otherwise influenced into one of two old political parties

A map of Kachemak Bay State Park shows proposed land additions A, B and C in House Bill 52 and the Tutka Bay Lagoon Hatchery. (Map courtesy of Alaska State Parks)
Opinion: Rep. Vance’s bill is anti-fishermen

House Bill 52 burdens 98.5% of Cook Inlet fishermen.

A sign designates a vote center during the recent municipal election. The center offered a spot for voters to drop off ballots or fill a ballot out in person. (Ben Hohenstatt / Juneau Empire File)
Opinion: The failure of mail-in voting

The argument that mail-in balloting increases voter participation never impressed me

Charlie Franz.
Point of View: Election integrity is not anti-democratic

The federalization of elections by the Freedom to Vote Act infringes on the constitutional right of states to regulate elections.

Snow blows off Mt. Roberts high above the Thane avalanche chute, where an avalanche blew across the road during a major snowstorm. (Michael S. Lockett / Juneau Empire)
An Alaska winter of discontent

It’s been a hard winter throughout the state.

Most Read