Commentary Magazine

Bathrooms, Polls and the Courts

(AP Photo/Elaine Thompson

It shouldn’t have come as a surprise to observers that gauging public opinion on the issue of Transgender bathroom rights depends a lot on how you ask the question. But as the fallout from both the controversial North Carolina law that started this argument and the equally controversial federal directive to all public schools in the nation imposing the views of the administration on the nation starts to sort itself out, the debate is bound to change direction. Once the government starts trying to enforce its new mandate, the question we will need to be asking about this issue is not so much whether the public agrees with President Obama and Attorney General Lynch as it is whether the federal courts are willing to turn yet another statute inside out in order for liberals to get their way on yet another issue.

The first rounds of polemical combat about North Carolina’s controversial law requiring people to use the restrooms that conform to the gender on the birth certificates showed most Americans weren’t comfortable with the notion that a state would try to legislate bathroom access. A CNN/ORC poll showed that 57 percent of Americans opposed the North Carolina law. As I noted last week, Governor Pat McCrory’s decision to stand by the rather far-reaching bill passed by his legislature seemed to show faulty judgment. By putting himself in a position where he could be depicted as the man in the bathroom door, he lent credence to the argument that this is a civil rights issue comparable to the fight against Jim Crow laws. As such it was an act of unparalleled political stupidity on the part of a man running for re-election in a swing state regardless of the merits of his case.

But last Friday’s decision by the administration to throw its own weight around changed the debate about a complex and often confusing issue. The announcement that the Justice and Education Departments were sending a joint letter to every public school district in the nation directing them that they must allow students to use any bathroom they wish to choose and warning that they face legal sanctions and cut-offs of federal aid if they defy the order put McCrory’s stand in a better light. A week ago this story could be depicted as a case of one southern state trying to bully a small minority group. Now it’s become one in which the federal government is trying to bully the entire country into accepting a new standard about which there has been very little debate, no dispositive court rulings, and no federal legislation passed that can reasonably be interpreted as justifying the position.

So it’s hardly surprising to learn that a New York Times/CBS News poll conducted after the release of the federal letter shows that more Americans oppose the administration’s position than favor it. In this survey 46 percent believe transgender people should use the bathrooms that conform to their biological gender while 41 percent think they should be free to choose the one that is in line with the gender with which they wish to identify.

The problem with both the North Carolina legislators and the federal bureaucrats that have weighed in on the question is that they both seem to think the issue is simple when it is nothing of the kind. Bullies in schools could victimize transgender persons because of their bathroom choices. Yet allowing free choice of bathrooms feeds the fears of students and parents about other sorts of abuse as people of different biological genders are thrown together. There are also justified privacy concerns when it comes to locker room facilities.

Clearly what is needed is a common sense approach that will safeguard the rights and protection of the minority as well as everyone else. But allowing schools and other institutions to act sensibly and create separate facilities for such persons is exactly what the federal directive may make impossible. The administration is determined to impose its own standard which sweeps aside privacy or safety concerns and to deny local authorities the right to make their own decisions. Regardless of one’s opinions on the issue, this raises troubling concerns about an out-of-control administration that is determined to legislate without the benefit of Congress or the courts. Which means that this will not be settled until the federal courts decide whether the administration was right.

We know that public opinion does play a powerful role in shaping the way judges rule. The United States Supreme Court’s decision in Obergefell v. Hodges, that legalized same-sex marriage throughout the country was clearly influenced by the way the culture had shifted on gay rights. But that change was the product of more than a couple of weeks of discussion as is the case with transgender bathrooms. It’s not clear that it will be as easy for the administration to depict all of those that are skeptical about its new rule as bigots as it was to do so for gay marriage opponents after so many years of debate.

If so, then the administration will have to prevail on the law and that is where this gets tricky. The justification for their edict is Title IX of the 1972 Education Amendments to the federal Civil Rights Act of 1964. That legislation was aimed at creating equal access for women to sports and other educational activities and led to the growth of women’s sports. But you don’t have to be a legal scholar of the acumen of the late Justice Antonin Scalia to understand that what the government is trying to do is the opposite of the intent of that law. Title IX determined that gender must be taken into account when ensuring equal access for students. Men and women are different and if a school allocates resources in a manner that makes it easier for males to participate and harder for females (i.e. football and other contact sports but not sports women can play competitively) then they are discriminating. The transgender rule seems to operate on the premise that the biological principles that are the foundation of Title IX are a matter of choice and therefore not dispositive.

Will the Supreme Court heed such an illogical argument when it is employed by the liberals claiming opponents of the new federal rule are bigots? Maybe. If public opinion swings on this issue the way it did on gay marriage perhaps the correct answer is probably, especially if the court swings to the left after the next election (something that skeptics about Donald Trump’s conservatism might insist could happen regardless of who wins the presidency). But those who wonder how this issue will eventually be decided should also pay attention to opinion polls as well as legal arguments. If most Americans become convinced, as they were on gay marriage, that the liberals are right then the judges will likely follow along. But if the New York Times/CBS poll is any indication, the fight over this issue is far from over.

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