Bathroom gender-identity laws stay
In another disappointing but hardly surprising action, the U.S. Supreme Court declined to hear an appeal reinstating a Virginia school district’s transgender bathroom ban. The result is heralded as a huge win for the LBGTQ community. And it is.
In passing on this case, the court missed a chance to issue a commonsense ruling. Here’s a look:
1) First things first. To paraphrase Mark Twain: “Reports of a ‘conservative’ court have been greatly exaggerated.” As this column previously pointed out, the sheer glee of many on the right over “finally achieving a conservative Supreme Court” (upon confirmation of Justice Barrett) was both naïve and ignorant of history.
Time and again, justices, especially so-called conservatives, have shown a remarkable propensity to deviate, often substantially, from their previous judicial philosophies. To think this court would be any different was wishful thinking.
Truth is, there are only two truly conservative, as in “strict constructionist,” justices (Thomas and Alito). Two others seem content not to upset the apple cart by relying on legal precedents (Kavanaugh and Gorsuch). One justice’s philosophy is yet unknown (Barrett), while there remain three steadfast liberals. The remaining judge, Chief Justice John Roberts, seems to revel in placating the country club set, prioritizing the “image” of the court (whatever that means) over making the most legally-sound decisions.
The court has a “Rule Of Four:” If four justices consent to a review, it’s game-on. Yet only justices Alito and Thomas wanted to hear the appeal. Why the three Trump-appointed justices looked the other way is unknown.
2) With so many problems facing America, from China’s aggressiveness to astronomical college tuition to spiraling crime, it’s amazing that the national debate continues on which bathrooms people can legally use.
That said, since the court simply chose not to hear the case (rather than issuing a ruling), there will be numerous new statutes, and subsequent appeals, so this issue is sure to be re-visited.
Critics claim that bathroom laws discriminate against transgender people, as well as anyone who “identifies” with their opposite biological sex.
A word about “discrimination.” Does the law discriminate? Of course. And it should, in just the same way that we “discriminate” a thousand times a day. We discriminate about what clothes we wear, what toothbrush we buy, where we work, what car we drive, and what kind of latte we order. And yes, we discriminate, as we always have, about which bathrooms we allow each gender to use. It’s always worked before, so why the controversy now?
Second, such laws are, above all, about safety and security, especially for women. What parents in their right minds — Republican and Democrat, gay or straight — would feel comfortable sending their young daughters into the women’s bathroom where a man, who on “feelings” alone, might be using the same facility?
No one is saying you can’t be transgender, or that you shouldn’t be proudly transgender in public. The Virginia school’s rule simply said that students had to use the bathroom corresponding to their biological gender. That’s it. No bigotry. No hatred. No nonsense.
But the school board went a step further by offering private bathrooms (along with three unisex bathrooms that were constructed in response to the controversy, per USA Today), yet those offerings were rejected on the basis of making the plaintiff feel stigmatized and isolated. It’s worth noting that, according to the Associated Press, “because (the plaintiff) had not undergone sex-reassignment surgery and still had female genitalia, the (school) board’s position has been that he remained anatomically a female.” Thus, their reasonable rule that she not be allowed to use the boys’ bathroom.
In other words, because one student is trans, an entire school must change. How is that disruption fair to the other 99.9 percent of the student body and staff? How does that not “severely interfere” with their education? Where does it end when laws are mandated for individuals? What about the rights of the many?
Is there bigotry toward trans people? Absolutely, especially trans youth. That is wholly unacceptable, especially for a nation that prides itself on tolerance and acceptance. But when reasonable accommodations are rejected, and compromise seems to be off the table, it has a counterproductive effect, to the detriment of the entire trans community — which is the last thing that constituency needs.
Hopefully, the court will eventually examine this issue with old-fashioned common sense, where it can be a winwin for all sides.