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 and President Trump has withdrawn the order.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.

Hate Speech – The Case For (Against?)

“Suffer you mother-*#&@%<~ son-of-a-!%*&$. I hope you rot in Hell.” Not a nice thing to hear. Especially if you're being kicked at the same time. It's assault, and it's punishable as such.

But what about “I pray that you are forgiven.” Said to a homosexual, as the speaker knocks the wallet from his hand while he is preparing to make a contribution to an LGBTⁱ charity, it's hate speechⁱⁱ and it may also deemed assault,ⁱⁱⁱ but more than that, because of what was said, in this instance it's also a hate crime.

The First Amendment, it seems, has become a framework for various pressure groups to use when promoting their aims. Thus:

“In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court.”^iv

Free speech had to be protected irrespective of the consequences, but in an age of diversity and multiculturalism

“Islam and Freedom of speech has become a contentious issue in recent times. The limits of what is, and what is not, acceptable speech is becoming a new battleground between Islam and the west. The issue came to a head in September 2005 a few days before Ramadan when the Danish newspaper Jyllands-Posten printed insulting and blasphemous cartoons of our noble Prophet.”

That statement, and its explication of “acceptable speech,” as printed in the blog of Caliphate Online, doesn't come as much of a surprise. The fact that important American publications refused to publish those cartoons, however, is a little more troublesome. Although there are loud protests whenever their own actions are criticised, and accusations that other parties would abridge their First Amendment rights, “Major American newspapers, including The New York Times, The Washington Post, The Los Angeles Times and The Chicago Tribune, did not publish the caricatures. Representatives said the story could be told effectively without publishing images that many would find offensive.”^v They chose, in this instance, to practice self censorship. Free speech was less important than not offending others. Sensitivity was the prime consideration in reporting this piece of news. When it comes to expressing editorial policy, however, the same papers are not at all reticent about stating views that many will find offensive. First amendment rights and free speech^vi are for those who can afford it, and they can exercise it whenever they choose to do so. And, as they have demonstrated, they can eschew it whenever they choose to do so. Notwithstanding any protestations of virtue and concern, their agendas seem to reflect politics rather than sensitivity.

And some publishers had other motives. “John Donatich, the director of Yale University Press, said the press has a long history of defending free expression, but the risk of violence in this case, outweighed the benefit of including the images, which can easily be found on the Internet.”^vii The same fear of violence motivated other publishers to take the same course.

“Congress shall make no law ... abridging the freedom of speech, ... ” That was the take on speech in 1789^viii But that has since been viewed as more a theory than as an appropriate reality. Though the Constitution said nothing about judicial interpretations of that or other mandates, nor about legislative measures that respond to the Court's decisions, it's clear that the First Amendment (as well as the remainder of the Constitution and its amendments) is flexible.^ix It shouldn't be taken too seriously. It's not an absolute. It is more important that we not risk the possibility that emotional harm that might come to anyone who is in a preferred^x group. That, of course, is not everyone, as the ACLU has shown.

And the definitions of “free speech” and one's First Amendment rights are also somewhat fluid. They include both the requirement that one be able to express his views, even if others^xi may find them hateful, and that he be able to prevent those others^xii from expressing theirs. It may not be clear from a simple reading of the Constitution that these “rights” exist, but executive, legislative, and judicial practice reflect the fact that they have a significant presence in the American ethos. Surely they're in the Constitution. How could it be otherwise? If we haven't found them, we haven't looked hard enough.

We are left with a language of sensitivity and euphemisms. We are reluctant to “call a spade a spade.” So we deny the language we learned as children and substitute code words when we suspect precision will cause discomfort (without always asking those we see as “victims” whether they agree). Later, however, we'll have to substitute other code words when we feel that the ones we have been using have taken on the pejorative tone at which we cringe.^xiii We practice self-censorship and the censorship of others with whom we disagree. And if we cannot censor, we punish. Somewhere along the line “hate speech” has become more offensive than any crime it might accompany. And the ACLU seems to take note only of certain “offenses” while ignoring others. It is clearly inappropriate to defend those who would insult Muslims, blacks, homosexuals, or others who might be offended. That would show a lack of sensitivity for their feelings, and the Constitution certainly shouldn't protect that. But if Nazis want to affront Jews or others, stopping them would be in violation of the same Constitution.

I know it's wrong of me to think so, but from my perspective there should be a single standard – either all speech designed to express opinion is permissible^xiv or it isn't. If the latter position is to be adopted, then it should apply to every instance in which an individual takes exception to what is being said or done. It should not be made the rule only for some preferred people of groups. But in any case, I don't think that was the intent of the Founding Fathers. If the media are free to express opinions, so are individuals. And a crime is a crime. It is the crime that should be prosecuted, irrespective of the motive. If the opinion of the perpetrator is the decisor of the significance of the crime, we have lost the freedom to form our own opinions, and the Constitution and Bill of Rights are meaningless. However attractive that may be to many among us, we will all lose by it. “Acceptable speech” is not acceptable.

Next episode: “Mom, Pop, And Jack The Killer Giant” – Burnt fat and me.

i     Lesbian, Gay, Bisexual, Trans-gender.

ii    The previous declaration, since it mentions “mother” and “son,” clearly expresses family values and represents a statement of love, not hate.

iii    And it's probably a few other crimes as well.

iv    Wikipedia article on ACLU.

http://en.wikipedia.org/wiki/American_Civil_Liberties_Union

v     U.S. Says It Also Finds Cartoons of Muhammad Offensive, Joel Brinkley and Ian Fisher, New York Times, February 4, 2006

vi    Ditto propaganda.

vii    Patricia Cohen, The New York Times, August 12, 2009. The view, apparently, was that others should take any risks involved. Yale was playing it safe.

viii    That's when the Bill of Rights was submitted to the new states. It wasn't ratified until 1791.

ix    I'll comment on the Judiciary in a future essay – a continuation of the ongoing series on proposals for changes in the Constitution.

x     Read “minority,” although that is a political, not a mathematical term.

xi    Who are not in one of the favored groups.

xii    See note x. It is permissible, indeed appropriate, to shout down those who would espouse a contrary view.

xiii    I recently heard on the radio about a politician who was taken to task for using the word “disabled.” Some felt that this was too harsh. Presumably they preferred “differently able” or “challenged,” but the individual who had been careful not to specify the disability (lest it be considered insensitive) was berated.

xiv   Holmes's exception for speech intended to cause danger – he mentioned “fire” in a crowded theater – however, makes sense. I'd also make an exception for speech (or publication of material) that threatens pubblic or national security. Some governmental secrecy is necessary if we are to be able to deal with other nations.