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It Isn’t 1964: Don’t Nationalize Decisions about Transgender Access

The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex.  Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.

Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively.  New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.

The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act.  Indeed, for the left on such matters it is always 1964.

But the analogy to racial discrimination of that era is misleading.There the problem of discrimination against African Americans was an enormous one, the issue had long disturbed the body politic, and most importantly, the government had failed to protect from physical violence those who wanted to embrace non-discrimination. It is obviously very different today, where Target and other companies line up voluntarily to announce new transgender policies much like those that the administration wants to impose by fiat.

Moreover, one’s race is more clearly irrelevant to any human activity than one’s biological makeup. Hence, as Ed Whelan also notes, the Obama administration itself doesn’t take a consistent position in favor of transgender rights.  It has left itself wiggle room to determine that not all transgender individuals can always play in the competitions with the sex with which they identify, presumably because of possibility of unfair competition.

Nationalizing this issue not only prevents percolation of social norms, it also polarizes the nation politically. It then becomes harder to compromise on more consequential issues, ones that are really national political problems, like entitlement reform or foreign policy. We are not yet so prosperous or safe that we can afford to divide ourselves unnecessarily.  Intensifying a culture war makes us weaker for more important battles.

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on May 16, 2016 at 06:02:03 am

The contrary view is that this is matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act. Indeed, for the left on such matters it is always 1964.

Ah yes – because for the right on such matters, there is never anything to be learned from 1964. This is the perspective that promoted the line “The reactionary is always willing to take a progressive attitude on any issue that is dead.” This is sometimes attributed to Theodore Roosevelt, although it may be merely a paraphrase of Roosevelt's introduction to "The Writings and Papers And Writings Of Abraham Lincoln, Volume One, Constitutional Edition,” which included the following:

It is a very poor thing, whether for nations or individuals, to advance the history of great deeds done in the past as an excuse for doing poorly in the present; but it is an excellent thing to study the history of the great deeds of the past, and of the great men who did them, with an earnest desire to profit thereby so as to render better service in the present. In their essentials, the men of the present day are much like the men of the past, and the live issues of the present can be faced to better advantage by men who have in good faith studied how the leaders of the nation faced the dead issues of the past.

Other times it is attributed to Franklin Roosevelt, although it may be merely a paraphrase of his June 24, 1938 fireside chat:

You and I all know that progress may be blocked by outspoken reactionaries, but we also know that progress can be blocked by those who say "yes" to a progressive objective, but who always find some reason to oppose any special specific proposal to gain that objective.

Pray forgive me for dwelling on the past, as there might be anything to be gained by doing so.

But the analogy to racial discrimination of that era is misleading. There … most importantly, the government had failed to protect from physical violence those who wanted to embrace non-discrimination.

Given all the anxiety about the threats posed by transgendered people in bathrooms, I’d be interested in seeing data comparing assaults committed by transgendered people to assaults committed on transgendered people. We may learn something useful about who the government has failed to protect from physical violence.

It is obviously very different today, where Target and other companies line up voluntarily to announce new transgender policies much like those that the administration wants to impose by fiat.

Ah. And because some schools had desegregated voluntarily, the Brown v. Bd of Education decision was superfluous?

One (game theoretical) argument for such top-down edicts is that, far from impinging on the will of the majority, they enable the majority to act as they would prefer to act if they weren’t afraid of the consequences they’d face from a very committed minority. The top-down edict permits local actors to act while shifting responsibility to Washington – for good and ill.

Moreover, one’s race is more clearly irrelevant to any human activity than one’s biological makeup. Hence, as Ed Whalen also notes, the Obama administration itself does take a consistent position in favor of transgender rights. It has left itself wiggle room to determine that not all transgender individuals can always play in the competitions with the sex with which they identify, presumably because of possibility of unfair competition.

*Is* race clearly irrelevant to any human activity? If government were hiring someone to infiltrate the KKK or the Black Panthers, would race be a bona fide qualification? If government were casting a film about the life of MLK, would government be able to take an actor’s race into account?

No. Rather, government *may* discriminate even on the basis of suspect categories – provided the purpose is sufficiently great, and the nexus to the suspect classification is sufficiently tight. Perhaps sports represents one of these circumstances. But bathroom use? As far as I know, a “pissing contest” is just a figure of speech….

What is the governmental purpose? What is the nexus? Maybe government has an interest in defending school children's "privacy interests." And that would make sense -- in a context in which transgendered kids were seeking to impose group bathroom facilities on a school that only had private bathrooms. But in a school that already has group bathrooms, what privacy is there? Maybe kids have an interest in being in an environment where they wouldn't need to fear being ogled by the lustful eyes of their neighbors. That's a potential argument -- for a world that does not acknowledge the existence of homosexuals. That world's dead. Indeed, homosexuals vastly outnumber trans kids.

Nationalizing this issue … polarizes the nation politically. It then becomes harder to compromise on more consequential issues, ones that are really national political problems, like entitlement reform or foreign policy. We are not yet so prosperous or safe that we can afford to divide ourselves unnecessarily. Intensifying a culture war makes us weaker for more important battles.

In the 1950s the US was engaged in a hot war in Korea and a Cold War throughout the rest of the planet – and our GDP was much less than it is today. And that’s when the US desegregated the military. So I’m not impressed with the argument that today we’re too poor or embattled to undertake the burdens of desegregating bathrooms.

Face it, conservatives decided before Obama took office that their best electoral strategy lay in polarization. Suggesting that polarization would lapse if only Obama changed his conduct is as plausible as suggesting that West Virginians would acknowledge the need to stop burning coal if only scientists explained things more clearly.

The bottom line is that ever since Nixon’s Southern Strategy, Republicans have hooked their wagon to the anxieties of undereducated white people. That’s why the party in now in the hands of Donald Trump. Having persuaded generations of voters that the Republican Party stands for the subordination of historically oppressed groups, the GOP has no strategies left but to flog this horse ‘til it dies.

The transgender bathroom bills are merely the latest manifestation of the GOP’s death throes. Like Butch and Sundance, history books will record that they went out in a blaze of – something.

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nobody.really
on May 16, 2016 at 10:58:13 am

Hey, NB:

He is right. It is always 1964 and the world is always coming apart AND thus, WE (the enlightened ONES) must act otherwise all those : undereducated white people" will once again start abusing their fellow citizens.
A rather convenient, if tiresome, argument you Progggies advance / deploy.

And, Oh BTW, the south grew more liberal AFTER Nixon's Southern Strategy. what is more he did not carry the majority of southern States - just more than the typical Republican would have.

Which leads us to this little historical tidbit:

WHY is the "Southern Strategy" so important in the minds of many politicos? Wanna take a guess?

I'll tell ya, bro! Because up to that point the "Solid South" meant 100% Democrat Party control. Gee, whiz, Batman, ya mean to tell me that the racist, Jim Crow South was actually controlled by DEMOCRATS. I'd never known it were I to listen to current pedagogy.

So stay in 1964, where one can feel superior to the poor uneducated whites; I mean after all, you are one of the enlightened, are you not! and no doubt will don your lustrous armor and cut a swath through that mass of uneducated white trash that now surrounds / supports The Trumpster.

Ever stop to think that maybe that same "white trash" that you ridicule flocks to Trump simply because they are TIRED of directives issued by armor clad white horse riding know-it-alls.

It is as simple as that!

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gabe
on May 16, 2016 at 15:12:14 pm

He's little different from that tinfoil hat guy who writes comments in this forum. He's a leftist wonk whose every word is political propaganda, designed to make trouble, not shed light. As usual, I could dig into his comments and tear them apart sentence by sentence, paragraph by paragraph, but really, I have better things to do with my time.

I wonder what facet of the human condition makes guys like this tick. How do they look at the question of one plus one and proclaim to the world that that the answer is five? Do they actually believe it? Or do they just enjoy the challenge of trying to be the most disruptive manipulator they can be?

I dunno.

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Scott Amorian
on May 17, 2016 at 07:15:36 am

I wonder what facet of the human condition makes guys like this tick.

Deadlines. You’ll see that I posted at 6:02am (Eastern time?). When I’m facing deadlines, I reward myself with the chance to do blog comments. And when McGinnis says things such as “Indeed, for the left on such matters it is always 1964,” well, he’s asking for it.

So, while I sincerely believe the arguments I put forth, I’ll also concede that they’re not the whole story. And while McGinnis was asking for it, I didn’t mean to come across as so mean-spirited. I mostly meant to come across as clever. And, from my perspective, I succeeded.

Let me take this opportunity to concede that regardless of whether the 1964 Civil Rights Act permits all the same remedies for trans people as it provides for black people, it does not necessarily follow that the Administration should avail itself of every remedy within its power – or at least, that the Administration should take this moment to pull out all the guns. But this argument does smell of special pleading; more on that later.

Various commentors have suggested that, while Obama may be entirely sincere in his views regarding trans issues, it probably isn’t coincidental that the issue may have political advantage for the Democrats, too. That is, the issue reminds people of the battle for homosexual rights – a battle that Democrats generally regard as energizing. The issue is tailor-made to trigger a reactionary response among people who were never going to vote Democratic anyway – old, white, religiously conservative people who can be counted on to make a conspicuous display of their own mean-spiritedness, sex-obsession, and dogmatism. At a minimum, this seems like a fine plan to energize young voters to turn out to support the Democratic ticket – even if it’s led by Hillary, who has not thus far inspired a lot of enthusiasm among the young.

Anyway, I’ll offer a more substantive (and somewhat familiar) comment below.

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nobody.really
on May 17, 2016 at 07:23:27 am

I struggle with the question of how to treat civil rights, which reflects a shift along the equality-liberty spectrum toward the equality end. McGinnis’s argument seems to be 1) that civil rights laws don’t prohibit discrimination against trans people, but also 2) that even if they do, there are sound public policy reasons to give deference to the discriminators. Most of my argument is suggesting that the principals involved in constraining discrimination based on race seem similar to the principals involved in constraining discrimination based on trans status.

I’m suggesting that McGinnis’s arguments are unprincipled – merely “special pleading.” And that’s wimpy.

In contrast, I’ve proposed something more concrete: an “Antitrust Affirmative Defense” for civil right cases. This defense is designed to achieve most of our civil rights goals, while also enabling government to grant greater leeway to discriminators without government being called upon to discriminate among the various bases for discrimination. That is, government would not be put in the position of saying “Racial discrimination = bad! Religious discrimination = good!”
See, the 1964 Civil Rights Act was upheld as an exercise of the Commerce Clause, on the theory that people are impeded from acting in interstate commerce if they cannot secure housing/employment/public accommodations due to their status as a member of a suspect class. But that needn’t constrain the behavior of every provider of housing/employment/public accommodation. So long as there are enough providers of housing/employment/public accommodation that are willing to conduct business with members of suspect classes on the same terms as other providers, then the existence of discriminators shouldn’t matter for the purpose of facilitating interstate commerce.

In practical terms: Let each discriminator discriminate without liability – provided he bears the burden of informing members of suspect classes where nearby they can find housing/employment/public accommodation at terms and quality comparable to those offered by the discriminator. You might imagine a sign at the front desk of a hotel or restaurant saying, “Welcome! Please be informed that, due to sincere religious belief, the proprietors regret that they will be unable to accommodate black patrons at this establishment. But we are happy to note that the neighboring establishment will be more than willing to accommodate you. Please take the enclosed coupon with directions – and with our complements!”

Or you could imagine having a Coordination Guy at the airport who helps arriving passengers find the next cab in the queue at the taxi stand. He’d know that Driver Joe has qualms about transporting dogs, alcohol, and unaccompanied women, while Driver Suzy doesn’t like Orthodox Jews. Coordination guy would simply match cabs to passengers to, insofar as possible, accommodate the preference of the drivers without impairing the interests of the passengers.

The chief disadvantage of this affirmative defense is that it would not vindicate a person’s dignity rights in avoiding discrimination. To be blunt, it’s easy to look upon the 1964 Act as not an effort to regulate interstate commerce, but rather as an effort to displace one values system with another regardless of its effect on commerce. After all, the history of the 1964 Act specifies that the law is intended to defend the dignity of subordinated groups. My proposal would put that conflict into starker relief.

The 1964 Act arguably contributes to a world in which people believe they have a legal entitlement to a certain social norm from private landlords/employers/providers of public accommodation. Specifically, a norm in which landlords/employers/providers are expected to refrain from expressing their views, even if that expression has no consequence but to make people uncomfortable by reminding them of their membership in a traditionally subordinated class. That is, the 1964 Act operates by suppressing speech -- in particular, speech regarding values.

But where a person’s interest in dignity conflicts with another person’s freedom of speech/religion, the Supremacy Clause would say that latter must prevail. Thus, my affirmative defense proposal, if adopted, would result in a world in which landlords, employers, providers of public accommodation could express open, even loud, contempt for members of subordinated groups without liability – provided that the members of those groups were not impeded in getting housing, employment, or public accommodation on equal terms. Maitre D’s could scream at patrons, “Mr. and Mrs. Goddamn Nigger, your table is this way!” without legal consequence.

I’d find that appalling. But I suggest that this is the price of religious freedom. The alternative legal regime places one state-approved world view above other world views, which seems to be the antithesis of the Establishment Clause.

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nobody.really
on May 17, 2016 at 10:15:25 am

Nobody:

A far better exposition of your position.

However, in both responses there is again to be found the typical slams against "uneducated, mean spirited white folks."

Also, why do you find it acceptable to equate "appalling" racism with religion?, i.e., "I’d find that appalling. But I suggest that this is the price of religious freedom."
I find this curious as there is a quite substantial religious membership among minority groups? Are they too racist?

Or are you just being funny? If so, it ain't working.

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gabe
on May 17, 2016 at 11:45:14 am

[…] O. McGinnis offered a better alternative at the Library of Law & Liberty […]

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Don't Politicize Transgender Issue | Acton PowerBlog
on May 17, 2016 at 12:03:32 pm

[W]hy do you find it acceptable to equate “appalling” racism with religion?

The KKK are part of the Christian identity movement and gather around a flaming cross. So should they fall into the "appalling racism" category or the "religion" category?

Why not both? Why not dump these categorical distinctions?

I equate religion with worldview. We tend to use nice words to describe worldviews with which we have sympathy, and stigmatized words to describe worldviews we disapprove of, but as far as I can tell, that's just another form of prejudice.

So I want public policies that grant people latitude to practice their religions -- consistent with the needs of the public policy. Some people say that their religion forbids them from offering health insurance that provides coverage for contraceptives. Some people say it forbids them from touching an unrelated female. Some people say it forbids them from interacting with blacks. I say public policy should subject each claim for accommodation to the same analysis.

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nobody.really
on May 18, 2016 at 16:38:31 pm

Well then, be specific in your "categorizing" - non-specificity is quite simply indicative of the same cognitive shortcomings of , yep, you guessed it, RACISM - wherein the less than admirable segments of a (artificial) racial classification are deemed to be not just representative of the group but it's definitive expression.

funny, how all the SJW types slip into (relish, perhaps?) into this mindset. I mean, after all, we all know that ALL whites have privilege, all straights are homophobic, all religious types secretly desire to subjugate blacks, women, gays and whatever favored victim of the day is. nobody really believes that, now do they?

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gabe
on May 27, 2016 at 11:49:40 am

I'm not following you.

Let me try again: I resist the idea of stigmatizing some worldviews but not others in the absence of an articulated standard. And I observe the courts have articulated a standard: bona fide governmental purpose for a policy, and nexus between policy and purpose. I propose using that standard for evaluating government policies that discriminate based on a person's status.

Again, I seek to articulate a principle -- a rule that applies generally -- so that we avoid discriminating in an unprincipled way. Thus I don't see the point of "being specific" in my "categorizing." Indeed, you may have noticed that one recurring theme of my comments is the desire to avoid reliance on "categories" (as distinct from attributes). Thus I find it appropriate for government, in hiring firefighters, to discriminate on the basis of a bona fide qualification such as the ability to lift bodies off the floor (an attribute), but not on the basis of gender (a category). Yes, I expect that discriminating on the basis of the ability to lift bodies off the floor may correlated strongly with gender, but one reflects a bona fide qualification whereas the other does not.

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nobody.really

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