Protecting the dignity of transgender Americans is a noble cause. Their equal access to housing, jobs, services and other social opportunities should be a legal right. Unfortunately, the “bathroom war” just begun by the Obama administration may actually impede this goal.
In a letter sent last week to every public school in the country, the Department of Justice and the Department of Education relied on Title IX of the Education Amendments of 1972 to insist that transgender people be given access to bathrooms and many other facilities and activities corresponding to their chosen gender identity.
Under the administration’s novel reading of the law, this is not a suggestion but an unequivocal legal right. The only value in play here is transgender people’s desire to affirm their gender identity during their few minutes of bathroom use. All other concerns – about privacy and modesty in a setting that most people consider almost as safe and intimate as their bedrooms – are beside the point. A legal right trumps any other nonright claim, and those who disobey may suffer serious sanctions.
This absolutist rigor is precisely why we accord the status of “right” only to those claims that are essential to individuals’ well-being. Do identity-based bathrooms meet this demanding test? The administration’s letter says yes. The subtext is that skeptics must be yahoos and bigots.
Normally, under the venerable Administrative Procedure Act, a rule change like this requires the government to invite the public to join the specific policy conversation before any rule is issued, by publishing the proposed policy, explaining its rationale, soliciting public comments on it and seriously considering those comments before deciding on a rule. If a rule is adopted, opponents may then challenge it in court based on this administrative record. Instead, by using what’s called a Dear Colleague letter, the administration hopes to sidestep that requirement.
The administration has ignored the notice-and-comment process for other controversial rules – on campus sexual harassment, and on the legal status of millions of undocumented immigrants (which is before the Supreme Court), for example. By ignoring it in this case, it has aborted a much-needed public debate over whether identity-based bathroom use can and should be regulated as a legal right, or merely left as an option.
Relatively few Americans considered bathroom access a civil rights issue until last week. They deserve to hear the arguments pro and con before making up their own minds. Much remains to be said and learned about the issue; truncating this conversation just as it is beginning is wrong (and arguably violates the Administrative Procedure Act).
Here are just a few questions that the public might have asked before making up their minds. How uncomfortable are people with the prospect of those with different anatomies sharing their bathrooms? Is this discomfort likely to grow or decline? Since gender identity cannot be confirmed before entering bathrooms, how great is the risk of voyeurism or other abuses? How costly will it be to provide gender-neutral bathrooms, and how would people of all genders feel about such alternatives? Will market pressures such as the boycotts against North Carolina’s bathroom regulation produce a better mix of solutions than the government’s one size fits all?
And how many transgender people actually experience indignity when using traditional bathrooms, and what is the nature of this indignity? Discomfort about using a urinal when men at nearby urinals think one is a woman? Annoyance at having to wait for a stall to conceal one’s anatomy?
Transgender people, by taking on a different, often-scorned identity, have demonstrated admirable courage. If civil rights law protects them in the other 99.9 percent of their day – as I hope it will – will they find traditional bathroom practices probably favored by most of their fellow citizens intolerable? Are there alternative bathroom arrangements that might strike a better compromise among legitimate conflicting viewpoints? In a country that allows and often encourages the states to adopt different policies on many of our most important public issues – education, for example – is uniformity essential on this particular issue?
I don’t know the answers to these questions, but – and this is the key point – neither do the agencies that issued their Colleague letter. And without a public conversation to find those answers, their policy may be wrong. A predictable backlash is already brewing in some states and will probably intensify, setting up a showdown with the federal government.
This is why the government should have followed normal policymaking 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.
Peter H. Schuck is an emeritus professor at the Yale Law School.