Rear Admiral Grace Hopper wrote that it’s easier to ask for forgiveness than permission. That was President Obama’s tact, expressed in one of the most worthless interviews of a president ever conducted, where a fawning Chris Geidner of Buzzfeed, wearing his Paul Stuart tie bought specifically for the occasion, embarrassed the internet by proving that it’s not up to the task of creating even the appearance of competence.
In fairness, few on the internet would expect much of Buzzfeed, in general, or Geidner in particular. No doubt the president chose carefully, given that the hardball interrogation by a Larry King-type would be too much for the president to handle. Who, among “legal journalists,” would pitch the ball slowest?
The choices ranged from the hard hitting Salon to the crucible of Vox, from the deep challenge of Huffington Post to the incisive Slate. But no, Buzzfeed got the nod, and lawyer-for-a-day Geidner bought a tie to pretend to be a grown-up. Obama could not have been more proud of his choice.
But why would a lame-duck president take to Youtube anyway? The answer is that he had a controversial message to send: he did it. It’s done. He didn’t ask permission.
President Obama on Monday made an impassioned argument for his administration’s decision to instruct public schools to allow transgender students to use the bathroom that matches their gender identity, saying that society must protect the dignity and safety of vulnerable children.
The remarks were the president’s first public comments on a directive released Friday that has added fuel to a searing national debate over transgender rights. Mr. Obama said the guidance, issued by the Education and Justice Departments, represented “our best judgment” on how to help schools wrestling with the issue.
There is nothing wrong with the value judgment,* if that’s the value judgment chosen. Unsurprisingly, Attorney General Loretta Lynch didn’t do this on her own, but with the approval of her boss. Now that the president has said so, it’s out in the open.
“We’re talking about kids, and anybody who’s been in school, been in high school, who’s been a parent, I think should realize that kids who are sometimes in the minority — kids who have a different sexual orientation or are transgender — are subject to a lot of bullying, potentially they are vulnerable,” Mr. Obama said in an interview with BuzzFeed News. “I think that it is part of our obligation as a society to make sure that everybody is treated fairly, and our kids are all loved, and that they’re protected and that their dignity is affirmed.”
Cool story, Mr. President. But doesn’t law require those folks in the House and Senate to do something beyond what you think? Heck, even the Administrative Procedures Act?
“We said, ‘It is our view that you should try to treat these kids with dignity,’ ” Mr. Obama said, adding that the administration had sought to help educators and administrators by including a set of “best practices” from school districts that have enacted similar transgender policies. “There are school districts who have been wrestling with this problem and have, we think, done a good job in accommodating them in a way that is good for everybody, and so you can learn from these best practices. This is what we are advising.”
This is where Geidner cut him off, demanding to know how he can claim the administration is “advising” when it threatened to cut off all federal funding unless schools do as they’re commanded, right? Right?!? Well, the award-winning LGBT reporter smiled broadly, gazed lovingly, and swooned. Who doesn’t adore treating kids with dignity?
Even the New York Times, no enemy to dignity, recognized that the president was spewing adulterated applesauce.
But the directive represents more than just a suggestion. While it does not carry the force of law, it signals how the administration interprets federal statutes, bringing with it an implied threat that schools that act otherwise could lose federal funding.
One would think the Times’ stylebook distinguishes “implied” from “express,” but to its credit, at least it recognized that Obama’s soft sell was total nonsense. And to the President’s credit, he ultimately reached the point where he made clear what his administration did.
“Ultimately, depending on how these other lawsuits go, courts will affirm or reject how we see the issue,” Mr. Obama said.
There is law done backwards. If one subscribes to the chaos theory of law, squints hard and embellishes one’s position with adorable vagaries like “dignity,” one can explain how a law prohibiting sex discrimination magically morphs into a prohibition on gender identity discrimination. What cannot be explained is how this radical extension was imposed by administrators who decided to issue a command on high and, concede that, at some later date, years away, maybe the courts will disagree. After the deal is done. Forgiveness rather than permission.
As should be clear, this isn’t a bathroom law, but a shift in the nature of a protected class under Titles VII and IX that will permeate education and employment. There is the question of whether gender identity is sufficiently similar to other protected classes, such as race. There are a multitude of questions, assuming America agrees that transgender discrimination warrants the level of protection given race, how that’s to happen, what President Obama delightfully calls “best practices,” such as requiring school districts to make roommate assignments based on gender identity.
There is the question of what becomes of the students who are subject to this flower-covered command until the time when a court decides to “affirm or reject” the administrators’ usurpation of congressional prerogative.
And there is the question of whether Chris Geidner was so thrilled at being given the role of handmaiden to President Obama’s violation of the public trust in the name of engineering one of the most significant changes in social policy in history, accomplished by circumventing every check and balance demanded by the Constitution.
Ironically, the Supreme Court denied cert the same day in a case raising the doctrine of Auer/Seminole Rock deference, which would have entitled a federal agency to create law by writing a letter that says, this is what we have decided the law to be, so suck it. It was a bad day for asking permission and a good day for asking forgiveness. Most will side with their preferred end, failing to grasp the ramifications of what just happened here. But they will most assuredly come back to bite our children and workplaces in the ass as “dignity” for the few dictates life for the many. Chris Geidner could have asked about this, but he didn’t. He did, however, buy a nice purple tie at Paul Stuart so he would look good on Youtube. Isn’t that what matters most?
Update: In a New York Times op-ed, Yale lawprof Peter Schuck explains, sympathetically toward the issue, why the Obama administration’s circumvention of law to impose its agenda upon the country deprives us of the discussion of whether, and how, transgender discrimination should be addressed.
This is why the government should have followed normal policy-making procedures to convene a public back-and-forth before deciding to adopt what is in effect a binding national rule. At a time when Americans’ confidence in Washington is dropping like a stone, the administration’s peremptory approach is a counterproductive way to advance the important cause of transgender equality.
Because the issue arises in the context of bathrooms, although it doesn’t really as the “Dear Colleague” approach goes well beyond in its express requirements, including locker rooms and dorms, this is not about a bathroom law. This is about the bundle of rights and causes of action that have developed in the context of sex discrimination being applied to all trans variations as it had to women, when it was limited to the binary definition.
While Schuck is clearly right about how this radical departure from extant law undermines a critical process, it remains in the public’s mind a battle over something silly, bathrooms. It’s not. Bathrooms are just today’s example, but once the definition of sex discrimination expands to include gender identity, all rights and interests that relate to sex discrimination must be extended as well. If that point is missed, then we’re not having the right debate.
* Just as being a critic of the DoE’s guidance on campus sexual assault does not mean that one is a supporter of sexual assault, or a critic of unconstitutional revenge porn laws doesn’t mean that one is a supporter of revenge porn, or a critic of special snowflakes protesting microaggressions in elite universities while cops murder people on the street, criticism of this extension of Titles VII and IX does not reflect any issue with homosexuality or gender identity.
Contrary to the strawman arguments proffered by supporters of this radical recreation of legal norms, this is not the result of any religious fervor or fear of pervs. Some will understand this. Most will not because you are incapable of dissociating the ends from the means, the details from the big picture of your emotions. You won’t be convinced, and I’m not trying to persuade you of anything. This is for the people who can grasp the concept that the ends do not justify the means, no matter how passionately you believe the “ends” are right.