Returning Existing Law To Existing Law

The Department of Justice pulled out, which Chris Geidner at Buzzfeed succinctly entitles “The Justice Department Is Taking A Step Back From Efforts To Protect Transgender People Under Existing Law.” It is, clearly, taking a step back.

The department withdrew a request on Friday that a federal court limit an injunction that has halted enforcement of existing civil rights laws to provide protections for transgender people. An independent federal agency, however, continued to press ahead in its pro-transgender legal position in another case.

Yet, there are two aspects of this lede that are, well, misleading, if not false. First, what the DoJ is halting isn’t enforcement of “existing civil rights laws,” but rather the extension of laws stretched far beyond their enacted purposes to achieve a policy goal by bureaucrats in the prior administration to socially engineer transgender interests into the mainstream. In other words, they’ve manufactured a claim that Title VII and Title IX, prohibiting sex discrimination, mean prohibiting transgender discrimination.

Is that “existing law”? That’s their argument, that words that meant one thing when enacted mean something very different decades later when purpose and definition are adulterated to reach results that Congress has expressly rejected. 

The second piece of Geidner’s puzzle is the independent agency which continues to “press ahead.” That would be the EEOC, the Equal Employment Opportunity Commission, whose seats remained filled with the butts of social justice warriors of an earlier administration. Continuity of government demands that rash swings of policy from administration to administration be moderated by subject matter experts running bureaucracies within the executive branch.

It may mean that implementation is moderated by thoughtful professionals in a field, but when those thoughtful professionals take a more radical approach, are less thoughtful and more manipulative, it has the odd effect of perpetuating a radical approach in conflict with the administration in control. But even then, it’s not entirely clear that there is a real policy conflict.

The argument, advanced by the Equal Employment Opportunity Commission and later by the Justice Department and other federal agencies, is that existing civil rights law bans on sex discrimination should be read to include a ban on anti-transgender discrimination because it is a type of sex discrimination.

During the presidential campaign, President Trump suggested he supported the rights of transgender people to use the restroom that matches their gender identity, but he later clarified that he believed the Obama administration had gone too far by trying to create a national policy. He said the decisions should be left to state and local governments.

Notably, Geidner raises the issue only with regard to choice of bathrooms, which is the chosen hill to take in the battle to morph sex discrimination into transgender discrimination.  This isn’t just a bathroom issue. It never was. It’s not in the guidance issued by DoE OCR. It’s not in the future application of Titles VII or IX. The efforts to limit this to what room one gets to pee in is disingenuous.

Despite whatever aspects of Trump’s policies one despises most, he’s shown no particular antagonism toward the LGBT++ agenda. Sure, VP Mike Pence may get all hinky around lesbians, but Trump’s kids, reared with that good ol’ New York sensibility, likely accept gay and trans folks without a second thought. Who carries more weight with dad?

But the issues raised are not now, nor were they ever, as simplistic as the bureaucrats in the Obama administration tried to make them appear. First, the issue of transgender rights is, by no means, “existing law.” If anything, it’s existing executive fiat, rammed down the throats of local schools and businesses by social engineers in federal agencies in Washington who seek to impose their social justice agenda by force and, once in place, either “normalize” it or, if not quite accepted, make it difficult to undo. What starts with bathrooms will permeate employment and education, and from there society.

It’s quite a smart scheme by those who believe in the cause, but the gloss Geidner puts over the problems it will cause can’t be ignored. What becomes of the female student who is compelled to share a locker room, or a bedroom (since the OCR guidance includes sleeping accommodations for students as well, a detail usually omitted) against her will? What of her privacy? What of her modesty? Is the female student’s right secondary to having a transgender female’s rights? Maybe so, but that’s a question that needs to be decided, not rammed down people’s throats.

The problem isn’t necessarily that people don’t care about the safety and well-being of transgender people. The problem is that there is a conflict in how to accommodate the rights to be afforded them. To the extent that transgender people are at risk of harm by using a bathroom where they will be subject to abuse, even violence, that can be helped by separate individual bathrooms and locker rooms.

But that, according to advocates, is an unacceptable response as it stigmatizes them by treating them differently. So then, safety isn’t the primary issue, as they can be protected. It’s safety plus feelz. And when it’s feelz, why do their feelz take precedence over other people’s feelz? It’s not that their feelings of stigmatization are irrelevant, but that there remains a need to decide, as we do with the divvying up of all conflicting rights, where and when one person’s values are more important than another’s.

The issue is certainly one worthy of thought and consideration. It may well end up that transgender people don’t get all they want, or that non-transgender people have to suck it up to accommodate their needs. But the decision of what the law should be isn’t left to the fertile imagination and radical agenda of bureaucrats in a federal office building.

Dysfunctional thought it may be, the way our government reaches these sorts of decisions is through Congress, through debate and legislation. Let the chips fall where they may, but let the process happen the way our system demands it.


9 comments on “Returning Existing Law To Existing Law

  1. Erik H

    So then, safety isn’t the primary issue, as they can be protected. It’s safety plus feelz
    Don’t be fooled: there is no “primary issue” overall.

    The issue is always the one which will most advance their overall interests, at that moment, in that argument. And there is not always much consistency between arguments. Sometimes the claim rests on safety; other times discrimination. Often it is the wholly-nebulous “dehumanizing” which apparently means whatever they want it to mean at the time.

    Similarly, sometimes it is convenient to assert that being trans is an innate, unchanging, and objectively-verifiable trait. But since objective statements are by nature subject to third party disagreement, that doesn’t always work: Other times it is more convenient to assert that being trans is a subjective experience, since you can’t really challenge a subjective claim. Sometimes you get both, at the same time, odd though that is.

    The goalposts move as needed.

    1. SHG Post author

      Putting aside the claims of gender fluidity, is there any reason not to accept the premise that some people are, sincerely, transgender? Maybe it’s just my inner dinosaur talking, but I can’t imagine why anybody would pose as transgender and endure the inherent risks and problems if they weren’t. Like it or not, they are what they are. More importantly, who cares what they are? It’s their life and they should be able to live it as they please.

      It’s not until the demands impact the rights of others that the conflict arises and requires sorting. But for that, who gives a damn what appearance a person feels most comfortable with?

      1. Cashew

        The question for me comes when you compare transgender to another type of body dysmorphia. An anorexic who calls himself fat is no more fat than a female who calls herself male is a man… Even talking to a licensed physician (anecdotal evidence, yes) I came to find that in his opinion there is nothing different between anorexia and transgenderism.
        As far as it pertains to law however, I don’t see how it’s any of the governments business what you’ve got in your pants.

        1. SHG Post author

          Is it? Is being gay a real thing or a psychological ailment? Some docs say one, some say the other. If it doesn’t impair your rights, then what does anyone care? It’s their business, not yours. But if it does produce a legislated duty, then it needs to be decided and, where in conflict, hard choices have to be made.

          What it can’t be us unilaterally decided by a bureaucrat, and forced upon society without any consideration given to the rights impacted negatively in exchange for the protection of transgender rights.

  2. B. McLeod

    Even bending “prohibiting sex discrimination” into “prohibiting transgender discrimination” doesn’t really capture what they are doing. There is no discrimination here, in that the transgenders are being treated exactly like everyone else of their biological sex. The “discrimination” argument presupposes that subjectively perceived (or simply asserted) “gender identity” controls over biological sex, so that transgenders are “being discriminated against” by not being treated differently from all other persons of their biological sex.

    Essentially, the proponents of this theory seek to have the courts declare that asserted “gender identity” controls, and that all normal people are required to speak and behave as though they believe that. The goal is to compel speech in support of a set of politicized notions concerning “gender identity.” I don’t see how the First Amendment really leaves any room for this.

    1. SHG Post author

      While the compelled speech piece is also there, it’s a separate piece from the physical accommodation. That said, the compelled speech piece isn’t limited to transgender people; everyone is entitled to their own language.


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