Transgender Bathrooms

The protests continue. Since the presidential election of 2016, and the victory of Donald Trump, there has been a continuous series of protests about anything he or his administration does. The issue itself is not critical to their actions. Indeed, most of the protesters don't even wait to evaluate the facts, but the protests begin on the order of whoever is at the other end of instructions and orders from the social media. Time and place of the protest are provided, and the search is just for angry people. The reason for their anger is irrelevant. There will be leaders to focus it when you get to the site of action.

How many, or how few, attend a protest doesn't matter either. Even if there are only a few there is guaranteed press coverage – often disproportionate to the number of (often artificially) incensed participants. Their rage may be based on the failure of their candidate to win, or a general fear of the one who did, but the expression of their passion is aimed at whatever happens, and whatever will make news and get publicity. It has little to do with the importance of the issue, or right and wrong, but provides a vent for anger and the opportunity to join in the fellowship of protest. And the media is happy to cooperate – to “advertise” the cause du jour.

And the current one is transgender bathrooms. President Obama's interpretation of an 1972 anti discrimination law which includes, in Title IX, the prohibition of discrimination based on “sex,” was that sexual orientation, including sexual dysphoria (“a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity” – according to Google) was included. The George/Christine Jorgensen case had been in the news about two decades earlier, but transgender issues were probably not what Congress had in mind when they passed this legislation. Nonetheless, President Obama decided that schools that receive federal funding are subject to the law and that, as part of this prohibition, they must permit transgender students to use the restrooms of their choice, and he issued this as an Executive Order. Congress was not asked what they had meant. and President Trump has withdrawn the order. Since the issue of transgenderism was not explicitly discussed by the founders, and obviously not granted to the federal government as a responsibility, nor denied to the states, he views it is as a local, not national, decision. That's how the Constitution allocates authority.

There are many issues involved. It's not a simple question. One subject worthy of discussion, of course, relates to the relative powers of the President and that of Congress; another relates to the relationship of the federal government and the states; and another to the level of concern of the public for “minority” groups. Whether ethnic, religious, racial, or other, a group is defined as such in order to have it included under the fifth and fourteenth amendments to the Constitution so as to get special treatment for that group and to make it a federal rather than a local issue.

Do transgender issues fall under this rubric? That's not for me to say. It should be – I'm a citizen, one of “We The People” – but it's not. Nor does it seem to involve the rest of the American people who have not been asked to weigh in, except as protesters. Nor has Congress, which has never expressed it's view of what was meant in 1972 by “the basis of sex.”

Without passing judgment on those with gender dysphoria, it is hard not to wonder about the rights of the majority as some demonstrate to demand the rights of the minorities. It is likely that the majority of the population are not transgender. That doesn't mean that the majority may impose its will on them, but it should make us wonder if our catering to this minority comes at the expense of the feelings of the majority. Are those with gender euphoria (I suppose that's what you'd call those satisfied with their sex), who might prefer not to share their restrooms with those of the biologically opposite sex, without rights? The question is not whether the majority should control the minority (although in a democracy many would argue that it may do so) but whether a minority should control the majority.

The problem relates to the definition and understanding of protected groups. Some are specified in the Constitution and, until it is changed, are the law of the land. But the understanding of what the Constitution and its amendments mean is often decided by the courts, or the President, or a group of protesters. And many believe that this is not the way an important issue should be decided in a democracy.

Should transgender students have the “right” to use the restrooms of their choice? Is this a “one size fits all” issue? What are the rights, if any, of those who are not transgender?

Executive fiat doesn't seem to be the way to answer this question to the satisfaction of our citizens. The voice and views of the non-protesters as well as those in the streets, should be sought and heard. And considered before decisions are made.