Thursday, December 10, 2015

Bureaucrats should not be allowed to get away with creative (mis)interpretations that clearly depart from the spirit and the letter of the law

Township High School District 211 in suburban Chicago settled its ongoing dispute last week with the federal Department of Education (DoE)
writes Benny Huang regarding the biologically male student who (in a story similar to the Lila Perry melodrama) wants to use the girls’ changing room because he thinks he’s a she.
Though the school district had already substantially indulged the boy’s delusions it was until recently insisting that the boy use a “privacy curtain” when disrobing, a compromise which the student and the federal government found unconscionable.

The recent agreement reached between the school district and the feds stipulates that “the school district will provide multiple changing areas with privacy curtains, for the student and any others who want privacy.” So now everyone gets a privacy curtain and it’s up to each student whether to use it.

It should come as no surprise that the student and the ACLU still aren’t happy with the resolution. Though the school district can now claim that it’s providing all the “girls”—both real and imagined—equal access to private changing areas, the transgender “girl’s” mere presence in the locker room has precipitated a policy change that falls short of full victory for transgender “rights.” Clearly, the school district is still treating him as a different kind of girl—which he is, of course. He’s a “girl” with a penis—a make-believe girl. “Girls” with penises tend to be treated differently than girls without them and that makes “girls” with penises feel marginalized. Boo hoo.

Just how did we reach this crescendo of madness? We “interpreted” ourselves here, of course! There is no law on the books that requires any school district to allow a boy access to the girls’ locker room no matter how he “identifies.” The Obama Administration has nonetheless conjured up a novel interpretation from an old and undeservedly venerated law to achieve his policy goal.

 … Separate locker rooms are in and of themselves sex discriminatory—further proof that discrimination is not always bad and that we all do it every day. Unless it’s the DoEt’s position that male and female locker rooms should be integrated, they’re also supportive of sex discrimination. But that’s not their position, nor is it the student’s position or that of the ACLU. They support keeping boys out of the girls’ room but they insist that the student in question is a girl like any other and deserves to be treated as such. Anything less is a violation of “her” rights under Title IX, they argue.

Except it isn’t. Title IX was never intended to shield gender dysphoric people from reality. It addresses discrimination based on sex. Even today, “sex” is understood to be assigned at birth as either male or female, with “gender”—a much more fluid concept—being used to describe how one feels about that reality.

 … Nondiscrimination laws lend themselves to this kind of abuse. As I have written in previous columns, I stand in opposition to all private sector nondiscrimination laws. Granted, the aforementioned locker room controversy is found completely within the realm of government so I will also add that even public sector nondiscrimination laws should be carefully considered, narrowly focused, and strictly adhered to. Bureaucrats should not be allowed to get away with creative (mis)interpretations that clearly depart from the spirit and the letter of the law.

The Civil Rights Act of 1964 offers an excellent example of a law that was twisted after its passage into something very different than what Americans were sold on.

 … In the wrong person’s hands, nondiscrimination laws can be “interpreted” to mean almost anything. They nearly always become leviathans of big government—and probably not by accident.