The Trump administration has cancelled the federal guidelines issued by former President Barack Obama in May 2016 that allowed students in public schools to use restrooms and other facilities consistent with their gender identity.
The Solicitor General’s office submitted a document to the Supreme Court asserting that the Obama administration’s directive did not “undergo any formal public process” or explain how the directive was “consistent with the express language of Title IX,” the federal law outlawing sex discrimination in education.
Education Secretary Betsy DeVos, initially reported to have opposed rescinding Obama’s order, has since released a statement asserting that “This is an issue best solved at the state and local level,” and added Attorney General Jeff Sessions, “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue.”
Contrary to Session and DeVos’ views, this is most emphatically a federal issue.
This once again raises the concept of “tyranny of the majority” articulated back in the 1830s by Alexis de Tocqueville, French political scientist and diplomat, who traveled across the United States for nine months between 1831-1832 conducting research for his epic work, Democracy in America.
Though he favored US style democracy, he found its major limitation in its stifling of independent thought and independent beliefs. In a country that promoted the notion of “majority rules,” this effectively silenced minoritized peoples.
This serves as a crucial point because in a democracy, without specific guarantees for the rights of minoritized peoples, there is danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.
Though, or course, most issues are different in many ways, but take the following cases as examples:
If the issue of prohibiting the practice of slavery were not settled in Lincoln’s 1863 Emancipation Proclamation and later codified in the US Constitution, and left instead to the individual states, I question whether the states would have voluntarily outlawed the practice of slavery, and I believe the practice of legalized slavery would have lasted long after the Civil War in some states.
If the issue of school desegregation were not settled in the 1954 Brown v. Board of Education US Supreme Court decision and later strengthen in the federal Civil Rights Acts of 1964 and 1965, and left to the individual states, I question whether the states would have voluntarily relinquished the practice of racial segregation, and I believe this practice would remain to this very day in some states.
If the issue of women’s reproductive freedoms were not settled in the 1973 US Supreme Court decision Roe v. Wade, and left to the individual states, I believe today women’s rights to control their own bodies would be dependent on their geographic location, thus disqualifying many women from their reproductive rights.
The founders of this country provided a mechanism for the protection of minoritized people against the tyranny of the majority. The checks and balances between the three branches of government: Executive, Legislative, and Judicial, and the authority of federal legislation over the individual states have been seen time and again (though of course not perfectly and not without major adjustments and reversals of policy along the way) to offer some form of protection for minority rights and responsibilities.
If we leave these important issues of social justice and social inequality to majority rule, then many of the evils that have plagued this country throughout its history will continue long into the future.
While the 14th Amendment to the U.S. Constitution guarantees equal protection under the law, (“…no state shall … deny to any person within its jurisdiction the equal protection of the laws”), our current patchwork of disparate and contradictory laws and state constitutional amendments remains not only confusing but also inequitable.
Just think back to before the Supreme Court legalized marriage equality nationwide for same-sex couples in June 2015. Prior to the decision, a couple could marry in some states but not in others. And if that married couple moved to a state that did not grant marriage equality, depending on the state, their marriage could be declared null and void.
Some legislators and community members list several objections to gender inclusive facilities: people would become uncomfortable, women would be at greater risk for assault, expense would be great to replace urinals with toilet stalls, it would go (no pun intended) against tradition, and other reasons.
Well, let’s take these concerns in order. First, change, any change, often taps into people’s anxieties. but over time, people generally accommodate or assimilate new ideas and knowledge into their overall mental library.
Secondly, yes, women have suffered assaults by men entering women’s rooms. Some gender inclusive facilities people are advocating, however, include primarily single-user lockable restrooms. These types of facilities substantially increase safety for all users. In addition, in larger multi-user restrooms, though the clearly stereotypical stick figure wearing the tacky stick dress stuck onto the door announces this as a female-only space, it cannot and has not ensured the occupants’ safety.
Gender inclusive restrooms, while nothing new in many locations and other countries, in others might be seen as non-traditional, contrary to what has existed before. This is the so-called “lack of prior claim” argument: if it was not there at the beginning of our organization, our culture, or our country, then it should not exist now.
We heard this theme voiced and written during the fight against the institution of slavery and against “Jim Crow,” when women began to organize for the right to vote, at the start of labor union organizing, calls for direct voting of US Senators rather than leaving it to state legislators, movements to abolish gender-based clothing mandates and other restrictive gender rules, demands for marriage equality, and many other progressive social, cultural, and political changes.
The current bifurcated restroom designation contradicts the realities of peoples’ sexed bodies, gender identities, and gender expressions. Many intersex people define neither as “male” nor as “female.” Which restroom must they choose, or which are they allowed to choose?
The “sex” designation typed onto many trans peoples’ official records assigned to them at birth simply do not accurately and integrally reflect their actual gender identities. They had no power or control at the time of their birth to list the designation that most closely matched their actual gender identities, and many laws today make it extremely difficult and expensive to permit any changes.
Gender must be seen as a continuum rather than as constituting binary oppositions. Basically, the criticism of maintaining bifurcated restroom facilities rests upon one primary foundation: cisgender male privilege. By permitting only cis-Johns and not Janes into their Johns, even in single-user facilities, cismen will perpetuate their unearned privileges. The ol’ boys club will remain safe and secure, keeping the gender infidels outside the perimeters as the barricades hold firm.
Dr. Warren J. Blumenfeld is author of Warren’s Words: Smart Commentary on Social Justice (Purple Press); editor of Homophobia: How We All Pay the Price (Beacon Press), co-author with Diane Raymond of Looking at Gay and Lesbian Life (Beacon Press), and co-editor of Readings for Diversity and Social Justice (Routledge) and Investigating Christian Privilege and Religious Oppression in the United States (Sense).
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