The Down Stream Implications of the Bathroom Bill

For John, BLUF:  Jobs bill for lawyers.  Nothing to see here; just move along.

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On 24 May of this year Harvard Law Professor Jeannie Suk had her article published in The New Yorker.  It is a good article and worth the five minutes to read it.  Because the issue is not totally straight forward.

The Transgender Bathroom Debate and the Looming Title IX Crisis

We need a very quick review of Title IX of the Education Amendments of 1972.  If you are not yet 44 it was before your time.  The act states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

At the time it was about things like girls sports teams getting equal treatment.  More recently, on 4 April 2011, the Department of Education Office for Civil Rights (OCR) sent a Dear Colleague letter, which said, about Title IX, that sexual violence is a form of sexual harassment and is therefore sex discrimination.♥

On to the article, here is the lede plus one:

This month, regional battles over the right of transgender people to access public bathrooms were elevated to national legal theatre.  First, the Justice Department told North Carolina that its recent law, requiring education boards and public agencies to limit the use of sex-segregated bathrooms to people of the corresponding biological sex, violated federal civil-rights laws.  Governor Pat McCrory responded with a lawsuit, asking a court to declare that the state’s law doesn’t violate those federal laws.  Meanwhile, in a suit filed on the same day, the Justice Department asked a court to say that it does.

To top it off, on May 13th the Education Department’s Office for Civil Rights (O.C.R.) and the Justice Department’s Civil Rights Division issued a Dear Colleague letter announcing to the nation’s schools that, under Title IX—the 1972 law banning sex discrimination by schools that receive federal funding—transgender students must be allowed to use rest rooms that are “consistent with their gender identity.”  The threat was clear: schools that failed to comply could lose federal funding. Protests of federal overreach immediately ensued, including from parents citing safety and privacy as reasons for children and teen-agers to share bathrooms and locker rooms only with students of the same biological sex.

Then Professor Suk gets into the details and the back and fourth and why this is more complicated than it looks.  There is the question of whose rights triumph when there is a conflict.  Well worth the read.

Here are the last two paragraphs of the article:

The debate around which bathrooms transgender people should use has given rise to deeper questioning of why we even have a norm of gender segregation for bathrooms in the first place.  But a push to make those spaces open to all genders comes up uneasily against feelings of female sexual vulnerability and their effect on an equal education or workplace.  To make things more complicated, the risk of sexual assault and harassment of transgender females in male bathrooms is a salient reason for providing access to bathrooms according to gender identity, while many worry about transgender males being sexually bullied in male bathrooms.

The common denominator in all of these scenarios is fear of attacks and harassment carried out by males—not fear of transgender people.  The discomfort that some people, some sexual-assault survivors, in particular, feel at the idea of being in rest rooms with people with male sex organs, whatever their gender, is not easy to brush aside as bigotry.  But having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination.  The sense that the Education Department has not looked down the road to consider the conflict is only confirmed by its penchant for announcing bold and controversial rules in letters, rather than through lawful processes.

Did I mention a great, quick, read.

The transgender bathroom issue isn't going away just yet, no matter what the Massachusetts General Court decides.

And, on City Life this last Friday State Representative Colleen Garry said that the Bill’s actual meaning is being left up to the Attorney General.  Frankly, we didn’t elect the Attorney General to write legislation.  Nor do we want State Bureaucrats deciding what it is the Bill says.  The SJC having that authority is sufficient for me.

One thing that could happen, with this recent Dear Colleague letter and the one from April 2011 is that campus life will become more complicated for boys and more of them will drop out or fail to get a higher education.  Even today the ratio is not good.  From a Forbes article in 2012 the ratio was 43.6 males for every 56.4 females.  Interestingly, the UK is about the same, at 45/55.

We need to be thinking of the long term impacts of these statistics, not just in economic terms, but in sociological terms.

Regards  —  Cliff

♠  Ms Jeannie Suk is a contributing writer for newyorker.com, and a professor at Harvard Law School.
♥  This had led to colleges and universities punishing (male) students, without due process, when female students accuse them of assault.  If Ms X says she was sexually assaulted then Mr Y can be dismissed from school, based on the findings of a kangaroo court.  That said, a number of Mr Xs are pushing back, in court.  Violation of Civil Rights.