North Carolina Republicans just passed a law that requires people to use bathrooms corresponding to the gender of their birth certificates. It also limits civil-rights protections for lesbian, gay, bisexual and transgender people, preventing local governments from extending rights beyond what the state offers.
So it wasn’t enough for Governor Pat McCrory and his fellow Republicans to legislate bathroom choices. No, seeking to galvanize their conservative base, the GOP leadership took a gratuitous swipe at broader civil rights.
The “bathroom war” was on. President Obama responded with a letter sent last week to every public school in the country, warning that federal money could be eliminated for any school that doesn’t allow transgender students to use the restrooms and locker rooms that correspond to their chosen gender.
Even some supporters of the cause believe Obama overreached. Peter H. Schuck, an emeritus professor at the Yale Law School and the author of Why Government Fails, and How It Can Do Better, argues in the New York Times that Obama may have actually impeded his goal.
Under the administration’s novel reading of the law, this is not a suggestion but an unequivocal legal right. The only value in play here is transgender people’s desire to affirm their gender identity during their few minutes of bathroom use. All other concerns—about privacy and modesty in a setting that most people consider almost as safe and intimate as their bedrooms—are beside the point. A legal right trumps any other non-right claim, and those who disobey may suffer serious sanctions.
This absolutist rigor is precisely why we accord the status of “right” only to those claims that are essential to individuals’ well-being. Do identity-based bathrooms meet this demanding test? The administration’s letter says yes. The subtext is that skeptics must be yahoos and bigots.
For both major parties, the phrase “absolutist rigor” would be an apt slogan. Schuck sympathizes with transgender Americans and wonders how long they should be forced to tolerate traditional bathroom facilities. Like me, he asks if there are alternative bathroom arrangements “that might strike a better compromise among legitimate conflicting viewpoints?” Finally, he questions whether this issue is best left to the states.
I don’t know the answers to these questions, but—and this is the key point—neither do the agencies that issued their … letter. And without a public conversation to find those answers, their policy may be wrong. A predictable backlash is already brewing in some states and will probably intensify, setting up a showdown with the federal government.
This is why the government should have followed normal policy-making procedures to convene a public back-and-forth before deciding to adopt what is in effect a binding national rule. At a time when Americans’ confidence in Washington is dropping like a stone, the administration’s peremptory approach is a counterproductive way to advance the important cause of transgender equality.
Obama thinks he’s right on the right side of history. I think he’s right on the right side of history. But I don’t think the president thought this through. Absolutist rigor can drive a politician to seek the right outcome the wrong way—to stoke animus rather than inspire social change.