The Trump Administration’s decision to reverse the policy, started under President Obama, of requiring public schools around the country to protect the rights of transgender students raises questions many of us couldn’t have even imagined when we were in high school. (I am now 54.)
Should a person’s sex, male or female, be determined by what is on that person’s birth certificate, that is, based on one’s gender-defining anatomy at birth, or should gender be based on how that person identifies?
This comes up frequently with regard to use of bathrooms in school. This is also the issue Gavin Grimm, the transgender boy from rural Virginia, and the ACLU are taking to the Supreme Court. Should Gavin use the girl’s bathroom because he was born with female genitalia? Or the boy’s bathroom, because he identifies as a boy? Or should Gavin accept the school’s “accommodation,” a gender-neutral or unisex bathroom?
What about the student wrestler from Texas? Born a girl, he is transitioning to being a boy, which includes taking small amounts of testosterone. State law requires that he compete in the girl’s wrestling division, because his birth certificate says he was born a girl, though he would much rather compete against other boys.
For some, these questions are easier to answer than for others. I happen to believe that a transgender individual should be respected for who they are and should be protected against discrimination and bullying and any other hostile or unfair treatment. For me this means allowing transgender kids to use whatever bathroom fits with their gender identity.
For others, these questions are more difficult, whether because of personal religious views or cultural and social conventions. For some, the lack of familiarity alone may, understandably, be a source of discomfort and uncertainty.
The Trump Administration’s decision to change direction on transgender policy in public schools raises questions about how a person’s gender should be determined, but the Administration’s action also challenges the fundamental constitutional question of who should decide. Sean Spicer, the President’s press secretary, noted that the President himself has “a big heart,” implying that the President may sympathize with transgender individuals, but he just believes the decision-making authority should be with “the states.”
When it comes to protecting individual liberties and freedom, the most vital of rights guaranteed all Americans under the Constitution, we just cannot allow a “states’ rights” approach to prevail. Necessarily, a decision to “leave it to the states” will mean that many transgender students will be less protected and will be vulnerable to harassment or abuse or even worse.
The lessons from the Civil Rights Movement in this country provide the proof. In fact, this year marks milestone anniversaries of two monumental decisions that affirmed the crucial role federal power must, absolutely must exercise over local or state power when it comes to protecting individual liberty.
In 1957, 70 years ago, President Eisenhower sent members of the 101st Airborne Division of the United States Army to escort nine black students inside Little Rock Central High School. If the President had taken the view that desegregation of public schools should be left to the states, then Arkansas Governor Orval Faubus would have been free to defy the Supreme Court’s landmark ruling in Brown v. Board of Education.
“Leaving it to the states” would have meant colored fountains, blacks in the back of the bus and separate lunch counters, too.
No doubt, many Little Rock parents felt uncomfortable with the idea of their children sitting next to African American kids to learn science and social studies. Just like some parents are not comfortable with the idea of their children sharing a bathroom with a transgender student.
Being comfortable, however, is not the point. We don’t defend individual rights and liberties based on whether everyone is comfortable. Or whether the majority of people are comfortable. The latest poll should play no part; what’s right is what matters.
I was just five years old when the Supreme Court decided Loving v. Virginia. That case, handed down in 1967, found a state law prohibiting inter-racial marriage to violate the Constitution. Although it seems unimaginable today, some states, as recently as 50 years ago, still had authority to prevent a black woman from marrying a white man.
More recently, we saw individual states voting on whether homosexual men and woman could marry. It took the Supreme Court to proclaim that no state law could infringe on the fundamental right all Americans have, whether straight or gay, to marry the person of their choosing. Federal authority was necessary to protect an important individual right so that right would be protected in every state in our country.
The States retain authority over many aspects of life. The 10th Amendment to the Constitution makes clear that those powers assigned to the branches of the federal government are limited and that all governmental authority that is not among the federal powers must be invested in state governments.
Protecting individual rights guaranteed under the Constitution, and most especially defending the rights of individuals who are members of a minority group – racial, religious, gender, or political – there is nothing more appropriately and more necessarily within the scope of federal power. There is nothing more crucially within the scope of federal responsibility.
Who knows what is in the President’s heart or whether his heart is great or small. His personal views about transgender students, any president’s views, are not relevant. What matters is a true commitment to the Constitution and to the values of equality and fairness that give the Constitution its enduring strength and meaning.