America’s bathroom battle - by the book
How dynamic regulatory capture put women's safety last.
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Last Friday the Obama administration issued “guidance” that public schools should allow transgender students to use bathrooms that match their gender identity. This new rule throws the federal government’s weight into a battle over a North Carolina law (of March 2016) stating that students must use the bathroom matching the gender assigned them at birth. Pundits have noted that the Obama edict is a pitch to the liberal (and younger) vote in the election contest. In the following, US writer Leslie Loftus explains how the situation developed.
Why are there so many discussions about men in women’s restrooms with everything else going on in the world and in the States?
In 1964, when Congress was debating the Civil Rights Act that would end racial segregation, a segregationist Democrat senator from Virginia, amended the bill to include sex discrimination. He intended it as a poison pill, and while the CRA 1964 passed, sex discrimination still got mocked.
As many saw discrimination in higher education as the biggest public obstacle for women in professions, the ultimately-failed Equal Rights Amendment had a provision ending sex discrimination in education. That provision became “Title IX” when Congress passed education laws in 1972.
Until recently, Title IX was most (in)famous for regulating collegiate sports. Schools had quickly complied with accepting women in equal number, but athletic scholarships became an equality issue.
In April of 2014, however, the US Department of Education, under pressure from LGBT special interest groups, released new guidelines for Title IX compliance, which stated, “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.” The Equal Employment Opportunity Commission, the executive branch committee that makes rules for CRA 1964, followed suit with similar rule changes in July 2015.
In US law we call this dynamic regulatory capture. Congress has the power to make laws on certain subjects, and the executive has the power to enforce those laws. As Congress’s power has expanded to more and more subjects, it delegates the details of those laws to committees created by the executive. (If you’ve ever wondered why Congress seems to be micromanaging the US, for example, holding hearings on steroid use in Major League Baseball—typically it is a problem of over-extended congressional power and regulatory capture.)
The regulatory committees are unaccountable to the electorate and vulnerable to capture by special interests, sometimes the very entities they are supposed to regulate. For decades courts have wrestled with how much Congressional delegation of this sort is Constitutional. And the bathrooms illustrate why.
Now public places and schools face violations if they do not adhere to the regulation—not the law, but the rule. Hence, the rush to open bathrooms, the early and predictable results, the state laws seeking to protect women, and the breathless coverage of it all.
North Carolina was the first to act, passing a law that people use the public restroom that corresponds to their biological sex. The federal government sued North Carolina and North Carolina has countersued over Title IX, CRA 1964, and the Violence Against Women Act. (Much of the case law on Title IX and CRA 1964 ties their definitions and interpretations together. What happens to one is often imputed to the other, and those two statues have great influence over all similar statues.)
The effects are ripping through our daily business but there has been no change in the law. Congress did not debate gender identity discrimination. It did not pass a new bill that the President then signed into law. No. An unelected committee in the Department of Education expanded the definition of “sex” under Title IX and set off this chain reaction.
The North Carolina complaint stated, “This is an attempt to unilaterally rewrite established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.”
Now every school and every business must prep a legal defence if they allow women a private space for hygiene.
This is all the more ironic given university trends to providing safe spaces. Somehow a woman who has been the victim of abuse by men must be protected from words or readings that might “trigger” distress, but if she seeks a locker room or abuse shelter of only women, then she’s a Jim Crow bigot.
Somehow this makes complete sense.
Leslie Loftus is a once and future American expat, most recently in London. She is also a lawyer and former local political campaign operative turned freelance writer. She currently lives in her hometown of Houston with her husband and their four children. Find her on twitter @AHLondonTX. This article was first published by The Conservative Woman and is reproduced here with permission.
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