United States Marshals escorted 6-year-old Ruby Nell Bridges to William Frantz Elementary School in New Orleans. It came after the United States Supreme Court ruled in Brown v. Board of Education. Rowan County, Kentucky, clerk Kim Davis was held in contempt for refusing to issue a marriage license to David Ermold and David Moore. It came after the Supreme Court ruled in Obergefell v. Hodges.
North Carolina Governor Pat McCrory received a letter informing him that a law enacted by the state covering, inter alia, the use of bathrooms by transgender people must be abandoned or the state would lose billions of dollars in federal monies, primarily in education funding. It came after Principal Deputy Assistant Attorney General and Acting Assistant Attorney General for the Civil Rights Division, Vanita Gupta, decided that the law violated her interpretation of what constituted discrimination.
The Justice Department warned the State of North Carolina on Wednesday that its new law limiting bathroom access violated the civil rights of transgender people, a finding that could mean millions of dollars in lost federal funds.
In a letter to Gov. Pat McCrory, Vanita Gupta, the top civil rights lawyer for the Justice Department, said that “both you and the State of North Carolina” were in violation of civil rights law, and gave him until Monday to decide “whether you will remedy these violations.”
Gupta was not enforcing a decision by the Supreme Court, even though she is a second level administrator in the Department of Justice. Rather, she was enforcing her own determination, her interpretation, of what constitutes unlawful discrimination, despite there being neither statutory nor case law that said so.
The ultimatum escalated a contentious national debate over North Carolina’s new legal stance on transgender and gay people, and set up what could be a lengthy showdown between the state and the Obama administration.
The name Catherine Lhamon would likely draw a blank slate by all three contestants in Final Jeopardy, but is one of the names best known by college presidents nationwide for coercing higher education to create a subconstitutional rape and sexual assault regimen on campus. This came from a 2011 “Dear Colleague” letter, issued by Lhamon’s predecessor, Russlyn Ali, without statutory or case law.
Most people will find themselves in the same hole as the New York Times, bound by their feelings about the particular conduct involved. Many will agree that denying transgender people access to a bathroom unless it conforms with the gender listed on their birth certificate is wrong and discriminatory.
The state law peddles the malicious idea that transgender people are sexual predators and that allowing people to use a bathroom that reflects their gender identity violates the rights of others.
It’s a dishonest framing of the issue, but then, it’s from an editorial, so one would expect it to be disingenuous.
The Justice Department letter is the latest effort by the Obama administration to build stronger regulatory and legal protections from discrimination based on gender identity and sexual orientation.
And therein lies the salient distinction. Congress hasn’t said so. The Supreme Court hasn’t said so. An administrator has so decreed, with the apparent support of the chief executive, whose public view has shifted markedly since stating that he did not support gay marriage when first elected.
A group of 51 families are suing the High School District 211 in Cook County, Illinois, the DoJ and DoE, for forcing the school to allow a transgender student to use the opposite sex bathrooms and locker room. The Times has a story about Catherine Lhamon forcing the school to bend to her will. There is no story about the lawsuit in the New York Times.
Given that transgender people are estimated to comprise 0.03% of the population, many will wonder whether this is a tempest in a teapot. Big deal. So what? Then again, if your daughter is a student at Fremd High School, this isn’t a theoretical issue. What about the environment for young women who do not want to share bathrooms and locker rooms with biological males? The DoJ and DoE have decided that they lose, transgenders win, and that’s that.
A culture of inclusiveness is a curious phrase. One person’s inclusiveness is another’s exclusiveness. Charlotte decided that the proper thing to do was to make their restrooms amenable to transgender people, which is certainly a fair choice to make if it’s decided that the interests of transgender people take precedence over any other concerns.
The question remains: who decides what’s fair, what interest takes precedence over what other interest? The DoJ and DoE have exercised their authority under the Higher Education Act of 1965, but have gone about a million miles beyond anything the law either says, or intended to say, or anticipated to say. They have done so without using the procedures of comment and notice required of federal agencies deciding to reinterpret the law in ways never anticipated. They have done so without congressional authorization. They have done so without the Supreme Court’s mandate. They just did it.
Perhaps you agree with Vanita Gupta and Catherine Lhamon. Perhaps you don’t think it’s a big enough deal to be worthy of much attention. Perhaps it doesn’t touch your life, and likely won’t ever touch your life, so you’ve got other issues that get your blood pumping.
But this re-engineering of societal views, where the rights of one group are traded off for the rights of another, is something that shouldn’t be decided by a bureaucrat in an agency whose name causes most people to shrug. For those who don’t really care how this came about, as long as the “right” outcome has happened, bear in mind that there could be very different people in Vanita Gupta and Catherine Lhamon’s seats a year from now, and they too may want to engage in social engineering of a sort with which you won’t agree.
Maybe the time has come for the law to recognize discrimination against transgender people, and that “sex discrimination,” which the law expressly prohibits, includes the wide and ever-changing reach of gender identity. But not because a couple of administrators have used their fiat to ram it down society’s throat.
Disagree with North Carolina’s law all you want, but at least its law reflected the will of its legislature, for better or worse. If the feds disagree, they can always take it to court to challenge its constitutionality. Like the 51 families in Cook County, Illinois, are constrained to do.
Welcome to the weird and wonderful world of regulatory law, where due process is sex discrimination and shoelaces are machine guns.
Not that I think Chevron deference it total bullshit…well, yeah, I do.
I think it’s rather difficult to deal with every situation without some level of deference, but it also does lead to some outrages. I suppose I’m as guilty as anyone else of seeing it as an outrage when it disagrees with my personal beliefs, and as an obvious necessity when I agree with the executive.
There is a substantial difference between applying the law as given and taking the given law and creating a totally new interpretation completely outside the law’s purview, and twisting it into things it never was nor was ever meant to be. Deference is for the former, not the latter.
P.S. Off topic stuff deleted.
Deference is the former, not the latter, but I find that people quite often disagree about when the law is being “applied as given” and when there’s “a totally new interpretation” in a way that nicely lines up their preconceptions. Even aside from political preconceptions, different legal theories seems to lead to quite different ideas of where and how to draw the line. I’ll avoid analogies to other situations though, since that falls under off-topic on your blog.
You are, of course, right that what’s within the ballpark and outside tends to be dictated by political preconceptions. But that doesn’t mean anything goes, no matter how passionate the emotional plea. And thank you for avoiding off-topic analogies.
The bureaucrats have become the leviathan hasn’t it? Presidents, even legislators come and go, and both get some kind of scrutiny while they have the job. On the other hand, the armies of functionaries stick around for as long, often longer, fly under the radar, and there’s no real political means of shaking the bad apples out.
On the bright side, these are higher level bureaucrats, likely to be replace by the next regime. I wonder who that will be?
President Oliver Wendall Douglas?
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