Last week, the South Dakota legislature voted to defy the Obama administration and strike a blow for sanity and common sense. It voted to reserve the use of bathrooms and locker rooms for the exclusive use of people of the “same biological sex.” Naturally, social-justice warriors are apoplectic.
There are two aspects to this battle: 1) the top-line cultural and moral struggle over the very idea of transgenderism and whether a boy can really become a girl and 2) the much less interesting but crucial battle over the rule of law itself. We’re learning that sexual revolutionaries respect the law just as much as they respect history, tradition, religion, and morality.
In April, 2014, the Department of Education issued a 46-page document titled “Questions and Answers on Title IX and Sexual Violence.” It’s not uncommon to see such documents. Federal agencies will routinely answer questions about enforcement actions, their governing statutes and regulations, and other routine administrative matters. But this document was different. Buried on page 5, paragraph B-2, was this declaration:
Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR [Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.
At a stroke, the Obama administration rewrote a statute that explicitly prohibits only sex discrimination in federally funded educational programs and transformed it into a prohibition against discrimination on the basis of sexual orientation and gender identity. And the DOE did it via a mere memo.
And since that time, the Department of Justice has given that memo legal teeth. Last July, it filed a “statement of interest” in a lawsuit, taking the side of Gavin Grimm, a male-identified but biologically female student who wanted to use male bathrooms and locker facilities.
These are extraordinarily lawless acts. The Department of Education simply doesn’t have the statutory or constitutional power to rewrite Title IX. And even though courts have granted it broad discretion to interpret and enforce Title IX through regulatory rulemaking, the Administrative Procedure Act requires new regulations to go through a notice-and-comment phase, a process that gives the public a voice in regulatory decisions.
Yet rather than go to the trouble of passing a law or even promulgating a regulation, the Obama administration did what it does best: It wrote a memo. By now, this “pen and phone” process should be familiar to conservatives. Twice the Obama administration has used memos to offer millions of illegal aliens executive amnesty, and the DOE itself has used memos to strip college students of their constitutional rights and subject thousands of male students to kangaroo courts — all in the name of battling a fake campus rape crisis.
#share#But the DOE transgender memo is worse than lawless. It has the potential to create an irreconcilable conflict with a truly binding and important legal obligation — a school’s responsibility to protect children from sexual harassment and sexual assault. In any other context, if a school knows that its girls are being exposed to the sight of male genitalia in the locker room or bathroom — and it does nothing — then it faces extraordinary legal liability. But is it suddenly not harassment when the penis belongs to a “female?” Does the problem then lie with the “bigoted” or “discriminatory” 12-year-old girl who doesn’t want to see her friend’s junk?
There’s also the horrifying specter of true sexual predators. Writing in The Federalist, rape survivor Kaeley Triller sounds the alarm. Speaking of mixed-sex bathrooms, she says this:
I read these reports, and my heart starts to race. They can’t be serious. Let me be clear: I am not saying that transgender people are predators. Not by a long shot. What I am saying is that there are countless deviant men in this world who will pretend to be transgender as a means of gaining access to the people they want to exploit, namely women and children. It already happens. Just Google Jason Pomares, Norwood Smith Burnes, or Taylor Buehler, for starters.
But now the Obama administration wants to put school officials in the position of sorting out the “true” transgender students from the confused, exploitive, or predatory. If they offend the transgender student (or his or her parents), they could face the wrath of the federal government. If they open their facilities for predators, they could destroy lives.
Of course the Left’s efforts to circumvent the constitutionally prescribed lawmaking process aren’t limited to Obama-administration memos. The Equal Employment Opportunity Commission has dramatically expanded the scope of Title VII from the statutory protections against discrimination on the basis of race, color, religion, sex, and national origin to include gender identity and sexual orientation, and liberal judges are fully capable of reading statutes (and the Constitution) as if every provision must be interpreted to advance the cause of social justice. The bottom line is that social-justice warriors will use any mechanism of government in any way that it can to advance the sexual revolution.
In the meantime, conservatives are blissfully unaware, for the most part. Sure, they know about the cultural argument and debate the philosophical and religious merits of contentious moral issues. Aside from isolated examples — such as the South Dakota legislature’s brave stand – conservatives tend to argue while the Left tends to act. And when it acts, it places children and young people at risk while exposing school officials to catastrophic liability.
When there’s a sexual-revolution omelet to make, somebody has to break the eggs.
— David French is an attorney and a staff writer at National Review.