Rekha Basu: Feds’ bathroom order a win for rights
In the early 1990s, during the presidency of George H.W. Bush, states were given an ultimatum: pass a law requiring motorcyclists to wear helmets or see your share of federal highway funds cut. Only three other states failed to pass such a law.
In 1984, under President Ronald Reagan, Congress passed the controversial National Minimum Drinking Age Act, punishing any state that allowed people younger than 21 to buy or publicly possess alcohol. The penalty was a 10 percent reduction (later amended to 8 percent) in a state’s share of federal highway funds. The act was subsequently upheld by the U.S. Supreme Court.
Last week, the federal Education Department notified all school districts, colleges and universities that receive federal funds that they must let transgender people use the school bathroom that matches their gender identity. A letter signed by both Justice and Education department officials said a requirement was consistent with the federal Title IX prohibition against sex discrimination in schools. The directive also said all school facilities and activities that separate students by sex must treat transgender students in accordance with the sex they identify with.
Pressuring recalcitrant states to do something in the public interest is not a new tactic. As we’ve seen, it has been used under both parties. The federal government can’t force states to change their laws to protect groups of people, but it can use a carrot-and-stick approach. In this case, that is to withhold federal education aid to states (or school districts) that don’t comply.
It’s also true that upholding the rights of transgender people is different than pushing for a higher drinking age or helmets on motorcycles. Much of the country is still uncomfortable with the notion of a gender identity that is different from someone’s biological sex. And when people are uncomfortable, they tend to lash out – especially when President Barack Obama is involved. Predictably, comments regarding the news on the Fox News website were derisive.
“When can I get my maternity leave? I am a man but identify as a pregnant woman,” posted one, mocking the notion of gender identity. There were also references to pedophilia, disintegration of the country’s moral fiber and “tyranny” and overreach by the government.
Obama is accused of forcing change too rapidly, but his approach seems a rather ingenious way to balance respect for the civil rights of transgender people with respect for states’ rights, and to educate the public about the issue in the process. Lawsuits are another avenue. Citing federal civil rights law, the U.S. Justice Department is suing North Carolina over its new law limiting public restroom-use to people based on their sex at birth. North Carolina is suing back. Hopefully this step by education officials will make other states think twice before passing similar laws.
A growing body of research finds that a person’s gender identity isn’t a choice but results from a combination of factors, including biology. I was especially convinced of that last year after interviewing the mother of a 5-year-old Iowa boy who only wants to dress in girls clothes, wear his hair long and play with dolls. He even asked his mother if he could be a girl when he grows up. His doctor encouraged the child’s mother to support her son to express his identity, rather than force him to follow male gender norms. She was doing so, despite all the societal pressures not to, and educating his school in the process. He will surely grow up healthier and happier because of it.
Maybe, with his directive, the president is forcing an issue most Americans don’t yet fully understand. But what better way to get comfortable with it than by getting the president’s permission to relax and take a more expansive view of civil rights? The directive allows state legislators who want to do right by transgender people but fear the political fallout to press ahead with liberalizing their policies and blame Obama for twisting their arms. That may have been part of his calculation. If so, smart strategy.
Rekha Basu is a columnist for the Des Moines Register.