It seems like only yesterday Americans were debating whether two men could marry each other. Now we’re debating whether men are men at all, whether that determination is made by biology or by feelings, and whether women and girls who resist disrobing in front of a biological male are any better than Klansmen holding a rope. The Obama Administration’s opinion on all these questions is clear, and the shooting war (metaphorically speaking) has begun.
With respect to public schools, the Departments of Education and Justice fired the first round by issuing “guidance” dictating that schools allow boys and girls to access each other’s restrooms, locker rooms, dormitories, overnight accommodations, and probably sports teams, depending on what sex they feel like on a given day. But over the hill came the cavalry in the form of the Texas Attorney General, joined by officials of ten other states (Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin) and by two school districts in Arizona and Texas, who filed a lawsuit on May 25 challenging the unlawful guidance.
In its guidance, the Administration decreed that the federal Civil Rights Act, through Title IX, should be interpreted to ban “gender identity” discrimination as well as “sex” discrimination. Congress has never expanded the term “sex” in Title IX to include “gender identity,” which of course was not a widely recognized concept when Title IX was enacted in 1972. But as in so many other areas of law, Obama considers the absence of congressional action as a mere speed bump on the road to fundamental transformation of American law and therefore American society.
The states’ lawsuit against this strongman tactic hits the Administration on multiple fronts: the guidance is “arbitrary and capricious” and otherwise not issued in accordance with the requirements of the Administrative Procedures Act; it invades the autonomy reserved to the states under the Tenth Amendment; it violates the “equal protection of the laws” guaranteed by the Fourteenth Amendment; it abrogates the states’ sovereign immunity; it violates the requirement that states receive “clear notice” of the conditions they were agreeing to by accepting federal funds; it is coercive in that it threatens a large portion of state education funding; and it was issued without required public notice and comment.
The plaintiff states thus ask for declaratory and injunctive relief to vacate and enjoin the operation of the guidance.
One interesting quote included in the fact statement of the lawsuit came from a 1975 article written by then-Columbia Law School professor Ruth Bader Ginsburg in defending the Equal Rights Amendment: “Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” We may eventually see whether now-Justice Ginsburg has “evolved” on this issue.
As we have written, for decades too many state officials have been complacent in letting the federal government override state autonomy rather than risk losing federal money. State officials’ newfound willingness to fight back is encouraging. Perhaps it represents a growing realization that for the Left, nothing is ever enough — they always demand more, and then more still, until the foundations of civilized society crumble and chaos ensues. There can be no compromise.
Jane Robbins is an attorney and a senior fellow with the American Principles Project.