The United States Departments of Justice and Education have notified state governments and publicly funded schools across the nation that they will lose billions of dollars in federal funding if they discriminate against transgender students. Amidst the flurry of lawsuits, threats, corporate relocations, event cancellations, and propaganda arising from North Carolina’s infamous HB 2, this is the most meaningful of interventions because it is national in scope and it has big teeth. I’ll attempt to describe the federal intervention and the rationale behind it.
I was stunned by the brevity and clarity of the federal correspondence. It’s only 5 pages long. The law is equally understandable and only 9 pages long. The US Court of Appeals decision that documents federal authority to intervene is long and complex but understandable to non-attorneys. The sample practices raised as many questions as answers, and didn’t seem particularly helpful, but they were distributed only as information not as advice or rules. My suggestion is that people who are truly interested read the documents for themselves. Here, in my opinion, are the key points.
From the letter: “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” … “As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
From the law (Title 20): Compliance … may be effected … by the termination of or refusal to grant or to continue assistance … to any recipient (for) a failure to comply …
The US Court of appeals supported the federal policy that “…a school generally must treat transgender students consistent with their gender identity.”
All of the interested parties would be better served by calm and open discussion of the issues. Public policies and laws that protect the rights of transgender people while being sensitive to the modesty, privacy and safety concerns of all parties can best be created when there is mutual respect and trust. Instead we have threats and misinformation. Our national behavior is disappointing but not surprising. It’s consistent with how human rights evolve and social change happens here. Similar events accompanied emancipation of slaves, reconstruction, women’s suffrage, organized labor, school integration, civil rights laws, and marriage equality.
In every case change began in a few local communities and states. Then a conservative backlash brought legislation to embed discriminatory traditions deeply into public policy. Reactionary leaders used fear and traditional prejudices to rally support then used raw power and secrecy to impose their will. In the case of HB 2, a few Republican legislators cooked up the scheme then called an emergency session of the legislature to pass it without public debate. The public, the press, and many of the legislators who voted for it were not even allowed to read the law until the day it was passed.
Similar ideas have emerged in several Republican dominated states. That is the environment into which the federal government has stepped – just as it ultimately stepped into the other human rights issues that I listed. That intervention can create a baseline of fair practices to protect transgender people, but it is far from ideal. Instead of allowing local creativity and cooperation, reactionary intransigence has forced federal intervention and poured gasoline on the always smoldering American culture war. Federal action will, at best, prevent discriminatory practices. It can’t produce ideal local results or tolerance.
The debate is over. Transgender people are entitled to the same protection of laws as people born to that gender. As we learn to collaborate on the best ways to move ahead it is good to remember that during war, safe and nurturing places often become battlefields where innocent bystanders are victims of the conflict. That is true of culture war as well as military warfare. Our best course is to plan and accommodate changes that are constructive and safe for everyone. We can achieve that if we learn together and collaborate toward that goal.