Friday, May 20, 2016

Transgenders, Bathrooms and the Obama Administation

You may have heard that the Obama Administration, using a letter sent to every public school in the country has insisted, under the fig leaf of "Title IX guidance" that schools must allow children who identify as transgender access to the bathrooms, changing areas and activities which correspond to their self-reported identity. If the schools refuse to obey this diktat well then the Administration would sure hate to see those schools lose any of their federal funding. Capisce? Some school districts, for ideological reasons of their own, had started to move in this direction even before the letter was sent. In Chester, Vermont a girl who insists that she is a boy has started to use the boys' bathroom, backed up by the new school policy and now by the new Administration order.
CHESTER, Vt. — The way A J Jackson tells it, he kept his head ducked down and pretended to fiddle with his cellphone as he walked into the boys’ bathroom and headed for a stall at Green Mountain Union High School here.
But the way some of his classmates see it, A J was still Autumn Jackson, a girl in boys’ clothing, who had violated an intimate sanctum, while two boys were standing at a urinal, their private parts exposed.
“It’s like me going into a girls’ bathroom wearing a wig,” Tanner Bischofberger, 15, a classmate of A J Jackson’s, who was not one of those in the bathroom, said this week. “It’s just weird.”
A complaint about Mr. Jackson’s using the boys’ bathroom set off a protest by students advocating the right of their transgender classmate to use the bathroom of his choice. Mr. Jackson has gradually been making the transition from a vivacious girl with a big smile and long wavy locks to a husky boy with chopped hair dyed several shades of green, snakebite piercings in his lips and gauges embedded in his earlobes. His chest is visibly bound, and because he has not yet started taking male hormones — he plans to do that, and also to have “top surgery,” he says — his face is smooth and still has feminine contours. He once thought he was lesbian, and is still attracted to girls.There were practical issues. When he had his period, he wondered if he should revert to the girls’ bathroom, because there was no place to throw away his used tampons. 
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This is beyond silly.
  • A square does not have five sides.
  • A woman does not have a penis or produce sperm.
  • A man does not have a vagina or experience menstruation.
"Rights" do not revoke reality. If you wish to pretend that you are a woman when you are really a man or pretend that you are a man when you are really a woman, knock yourself out. I couldn't care less. Live and let live I say. I have my own problems. But when you try to dragoon me into going along with your nonsense I will suggest that you commit an anatomically impossible though hypothetically pleasurable act. Tolerance is one thing. Active endorsement/encouragement is something else. If someone informs me that he's a dog I don't put a leash on him and order him to roll over for a belly rub. I tell him to get help.
Some people have compared transgender rights and the US Civil Rights movement, which among other things, ended racially segregated bathrooms. I think this is a bad comparison. Just because two actions are identical doesn't mean they are morally the same. You must know the reasons for the action. A police officer who shoots someone because he doesn't like that person's attitude is different than a police officer who shoots someone who is holding a knife to a hostage's throat. Exact same action. Entirely different moral calculus. Bathrooms were segregated by race because white racists wanted to enforce white supremacy. US racism defined Blacks as an untouchable class. Racially segregated bathrooms were just one example of a panoply of customs and laws across the US which defined black people as inferior. Black people and like minded allies fought against this not by claiming that black people were really white but by saying that the state and private entities were constitutionally or morally forbidden from segregating by race. We separate bathrooms and locker rooms by biological sex not to enforce male or female supremacy but rather to uphold the privacy and dignity of both sexes. Most people have a preference for single sex privacy when changing clothes or eliminating. There are also some minor safety concerns. But the primary reason is privacy. Does a desire for privacy automatically translate into unlawful discrimination? I don't think that it does. If you are a (wo)man it's not discrimination for you to be expected to use the (wo)men's room. This is an important point. Everyone knows what the other sex looks like. Everyone has seen the other sex nude or partially unclothed. And even so, absent an emergency, it is still generally considered a violation of dignity and privacy for someone of the opposite sex who is not your intimate partner to look upon you when you are partially clothed or nude without your consent. Sex is a more rooted biological category than race is. Race can differ considerably across time, culture and countries. But sex, with incredibly rare exceptions, doesn't vary that much within or among cultures. In the overwhelming majority of cases you are either male or female. And most disparate cultures (exceptions noted) will agree. Noting a difference based on biological sex is not a horrible societal imposition based on hatred. It's a key part of human reproduction. It is perhaps theoretically possible or desirable to be indifferent about race. Not so about sex.

It's true that some good people do not care one iota about what I consider to be essential standards of privacy and decorum. That is their right. I don't tell them how to live their lives. But in a time where college students compete to have fainting parties over invited speakers they dislike and people parse each other's communication for microaggressions it seems disingenuous to ignore that some people will be uncomfortable in sharing intimate facilities with people, who, despite their delusions, are of the opposite sex. When I go to the bathroom I don't wish to run the risk of exposing myself to a woman. And there are many women who would like to change or do other things without a man looking at them. If there is a right to privacy, as the Supreme Court has found, surely it must include the ability to eliminate or change clothes without being viewed by a member of the opposite sex? This controversy is so silly. If you have one of these use this changing area/bathroom. If you have one of those use that changing area/bathroom. Subjective feelings shouldn't enter the equation.
There is a procedural issue here as well. There isn't any federal civil rights law which adds transgender status or sexual identity to protected classes. People have tried and fortunately failed to create such a law. There hasn't been any Supreme Court decision which finds that either federal law or the Constitution requires that people who identify as transgender must be allowed to use the bathroom or locker room of their choice. The Title IX law which the Administration cites for its decree is about sexual equality between men and women's sports teams and educational opportunities. Congress could have placed gender identity in the text of the law but did not. Gender identity and sex are not synonymous. The law does not list gender identity. Until it does I think the Administration is overstepping. This is an example of the tension in our political system between the rights of states, individuals and the federal government. It's designed that way. Unfortunately in the modern era there has been a bipartisan tendency for more and more power to be concentrated in the executive branch, more specifically in agencies and regulatory bodies. This is a metastasizing threat both to separation of powers and to representative government. If the President and his executive branch are just going to tell us what laws mean and enforce laws that were never even passed then why do we need Congress or the Courts? The fact that the Administration refuses to consider the obvious solution of a single occupancy gender neutral bathroom for those who identify as transgender shows me that the concern here is not so much about the rights of the transgender population as it is trying to stifle dissent. Lynch, Gupta and President Obama appear to be operating under the assumption that they get to micromanage policy in public schools across the nation. Absent a change in the law they do not. I hope that school administrators remember that and treat this guidance letter with the rich contempt that it deserves. I don't see the point of the Adminstration's actions. The Administration wants a fight. Well they are certainly going to get one.


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