The latest example of Obama’s extra-legal advancement of “hope and change” — the fulfillment of his promise to “fundamentally transform” America — is the administration’s letter of May 13 directing public schools to give transgender students full access to the bathrooms and locker rooms of the opposite sex. The directive, crafted by Vanita Gupta, head of the Justice Department’s Civil Rights Division, and Catherine Lhamon, assistant secretary of education for civil rights, has tremendous implications for all of America’s public schools and the vast majority of colleges and universities that receive federal funding or labor under the Orwellian excesses of Title IX legislation. Take for instance the following injunction from the section of the letter on “Restrooms and Locker Rooms”:
A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.
In one fell swoop, the directive demands that schools accommodate transgender students by allowing them to determine which bathroom or shower they access, and forbids schools from forcing (or even encouraging) transgender students to utilize individualized bathrooms and showers created specifically to allow for a third way, one that would provide for the specific needs of transgender students without compromising the privacy of others. Privacy is clearly important — the letter plainly allows accommodation on the basis of it — but obviously not important enough to supersede the newly minted and exclusive rights of transgender students. The clear implication is that multi-user bathrooms and showers dedicated solely to transgender students are also discriminatory.
Paradoxically — and with no clarification or explanation — the letter asserts that schools may make individual bathroom and locker room options available to students who protest the “inclusive” accommodations put forth by the feds. Allowing such protest accommodations on the part of non-transgender students — on behalf of girls, for instance, who have the temerity to believe they are actually girls — underscores the illegitimacy of the entire enterprise, serving as little more than a cheap way to provide cover from the onslaught of legal action already massing in the wake of such ill-conceived social engineering. Thus, girls who protest the presence in the showers of boys who think they are girls can now demand the same individualized showers that are otherwise offensive when offered to protesting transgender students. That’s right, third-party bathrooms and showers are now acceptable accommodations for offended non-transgender students, but discriminatory when the sole option available to transgender students.
Also paradoxically, schools may still “provide separate facilities on the basis of sex,” but cannot restrict access to those who belong to that specific biological sex. What exactly is the point of allowing sex-based bathrooms and showers if they cannot be that for which they were mandated in the first place? In this inconsistent and contradictory system, the only students with absolute freedom of choice are transgender students: All other choices are compromised or negotiated. Besides all of these nonsensical distinctions without a difference, such changes are urged without any formal definition of transgender identity, no existing legislation affirming such parameters, and no legal precedent or voter mandate for incorporating such radical new policies.
Further, we already have ample evidence from social justice warriors of the type making these decisions that merely asking transgender students to verify or legitimate their gender identification is a form of inexcusable bigotry (potentially punishable by laws, should we ever again get around to actually passing them). As such, transgender identities are now more protected and less subject to politically correct deconstruction than either heterosexual or homosexual identities (and definitely more protected than the biological sex that underpins any of these alternatives). An unspoken but all-too-real consequence of this initiative is that gender not only trumps biology, but also that a person’s gender is unassailably fluid to the point that it can change from day to day, hour to hour, or even minute to minute. A biologically male student who identifies as transgender may dress with the boys before gym class and then shower with the girls after class ends. And the only true crime would be asking the student to explain the difference, let alone justify it.
And will we have to constantly issue new edicts as to whether the toilet seat be left up or down? Whether urinals are required in all women’s bathrooms? Whether everyone in men’s bathrooms must sit to do their business at all times? Whether sanitary pads must be available in all conceivable bathroom configurations? It would be much easier to simply require everyone to use the exact same bathrooms and shower rooms. And that is and always has been the point — just like ObamaCare was designed to eventually give way to Single Payer.
Let’s be very clear about what is happening here. What American young person — of any sex or gender, real or make-believe — would consider it discriminatory to be provided a private bathroom or shower exclusively for his or her own personal use? The desire for bathroom privacy is a pervasive American cultural norm, and not just among the youth. In certain European countries, it is perhaps more common to find males and females occupying the same bathrooms. Nevertheless, it stands to reason that the preference would be for bathroom privacy even in these countries, should single-occupancy baths and showers be made available.
Such accommodations are a consummation devoutly to be wished, not a torment to be endured: unless, of course, you have a different agenda than simply utilizing the facilities to answer the call of nature. It does not tax any but the most progressive of imaginations to contemplate which of nature’s urges the new bathroom policies might gratify for young men. There are few more liberated places than the University of Toronto, after all, and yet UT was forced to rescind its transgender bathroom policy after unambiguously male students were caught filming their demonstrably female classmates in the showers.
Perhaps the way to upend all of this nonsense is to convince legions of students whose sex and gender conform to demand their own private bathrooms in order to guarantee their rights to privacy as outlined in the federal government’s mandate. As in the case of all such utopian planning, the ultimate objective is not fairness or tolerance, but the leveling of all distinction in pursuit of sameness and “equality.” The push to create one universal bathroom and shower room that everyone uses in common — without distinction — foreshadows ever more bold plans aimed at the eradication of all difference in the name of social justice. Why is it that everyone but progressives can see that those screaming loudest about diversity are almost always those most eager to destroy it altogether in the name of “equity” and “fairness”?
Despite the highly proscriptive language of the letter, and the officiously absurd titles of the bureaucrats who wrote it, defenders of the directive are quick to insist that this is not “law,” but merely a series of suggestions about how schools and universities can become more “inclusive.” But the two unelected officials — the latest in a long line of unaccountable Obama surrogates regulating and restructuring every aspect of American culture — make it clear that there are indeed consequences for not conforming to the new bathroom order. The letter may not carry the force of law, but it does purport to be “significant guidance” about how the administration “evaluate[s] whether covered entities are complying with legal obligations,” and implies quite directly that federal aid will be withheld from schools that do not comply: “As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.”
This default to Title IX is self-serving indeed, since the Obama administration was effectively rewriting Title IX to accommodate transgender identity as early as 2014. In April of that year, the Department of Education offered further “guidance” about the enforcement of Title IX, quietly adding an interpretation that incorporated gender identity:
Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and [the Office of Civil Rights] accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.
The prohibition “extends” — we are told without explanation — to discrimination over gender identity. Note the condescending and dismissive way that male and female — masculine and feminine — are reduced to mere stereotype. In other words, the DOE simply invented new “rights” and “obligations” out of whole cloth, and inserted them into existing legislation, no questions asked and with no other oversight or congressional approval.
Since then, the made-up accommodations have been used to bring various public schools to heel about transgender issues, especially with regard to bathrooms and shower facilities. The fact that these changes were “suggestive,” rather than codified law, did not prevent the feds from successfully bullying the schools in question to conform, setting a dangerous but politically expedient precedent. Not surprisingly, groups such as the ACLU rallied to the federal government’s made-up cause, defending the “right” of transgender students to use the bathrooms and showers of their choice. This is how social justice activism — usurping power that does not belong to it — imposes itself into existing statute without process or precedent, using the punitive power of government to enforce the legally unenforceable, as Congress nods, lawyers enrich themselves, school districts cave out of fear of lost funding, and the constitutional Republic devolves into a banana republic run by unaccountable apparatchiks and driven by political extortion. In a series of incremental, unnoticed, unopposed, and ultimately illegal steps, the federal government conflated biological sex with gender, inventing yet another protected class and compelling the nation at large to accommodate it without passing a single law or soliciting a single vote.
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