An extraordinary amount of media attention has been devoted to the transgender bathroom access debate, without an in-depth analysis of the facts.
Despite all the ink and airtime, the specific aspects of the issue have been inadequately reported. The individuals covered are not exclusively those who are a sex other than that which they were born into, rendered differently by surgery or pharmaceuticals, or with a proven record of identifying as a different sex. Nor does the concept relate to being gay or straight. Advocates seek to allow anyone, at any time, who simply claims at a particular moment to feel like he/she is not their biological sex, to use the bathroom of their choice.
In April, the U.S. Court of Appeals for the 4th Circuit Court ruled in a 2-1 decision that a transgender high school student who was born as one sex can sue his school board on discrimination grounds because it banned him from the other sex’s bathroom, under Title IX of the Civil Rights Act. The matter will probably be eventually decided by the Supreme Court.
According to the legal website Scotusblog. “The Fourth Circuit panel majority did not itself rule on whether Title IX …does provide protection [for] students based on their gender identity, in federally funded educational programs. Instead, the panel majority chose to defer to the view of the U.S. Department of Education that Title IX’s reference to sex includes gender identity. Technically, the panel majority had invoked what is called “Auer deference.” That is a reference to a 1997 Supreme Court decision in the case of Auer v. Robbins, declaring that federal courts should give deference to federal agencies’ interpretations of their own regulations, if those regulations are ambiguous…”
Dissenting, Judge Paul Niemeyer wrote that the decision “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.”
In May, the U.S. Departments of Education and Justice, in a move many believe to be a violation of state control over their own school systems, sent a “Guidance” notice to schools across the nation, informing educational institutions to “Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;…Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity…”
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Using Title IX, which was enacted to protect women from gender-based discrimination, is seen as ironic by those opposed to the decision, since it subjects females to significant danger from voyeurs and predators. As a Federalist analysis notes, “… there are countless deviant men in this world who will pretend to be transgender as a means of gaining access to the people they want to exploit, namely women and children…Don’t they know that one out of every four little girls will be sexually abused during childhood, and that’s without giving predators free access to them while they shower?…With zero screening options to ensure that biological males who enter locker rooms actually identify as female, how could a woman be sure the person staring at her wasn’t exploiting her? Why is it okay to make her wonder?… Is it ironic to no one that being “progressive” actually sets women’s lib back about a century? What of my right to do my darndest to insist that the first time my daughter sees the adult male form it will be because she’s chosen it, not because it’s forced upon her? What of our emotional and physical rights?”
A firestorm of controversy has erupted in the wake of state reactions to various attempts to allow those claiming to be transgenders to use the bathrooms of their choice.
North Carolina enacted House Bill 2, the Public Facilities Privacy & Security Act, which mandates that individuals use the bathroom corresponding to their physical sex. In a CNN interview, North Carolina’s House Speaker Tim Moore defended the bill. “One of the biggest issues was about privacy…The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”
In response to the legislation, several organizations took action against North Carolina. The NBA withdrew its all-star game plans to play in the state.
Real Clear Politics reports that “PayPal, a company that happily does business in Singapore—a country that literally outlaws being gay—denounced North Carolina and loudly axed 400 new jobs in Charlotte. …It’s a fight about reality, and whether the government can dictate a certain version of it. Ultimately, it’s a fight about freedom of thought….America’s burgeoning bathroom wars, so silly and banal on the surface, are actually quite deep: They fling together two conflicting, wildly incompatible streams of thought. On the transgender side, identity is everything. If gender is truly fluid, and yet truly knowable, then the denial of one’s gender identity is a hurtful denial of one’s very being or self….”