News of the president’s forthcoming directive requiring educators to let students use bathrooms according to their gender identity — not their birth certificate — offered a welcome set of guidelines to some school administrators Thursday night about how they ought to proceed amidst the ongoing legal and cultural bathroom battle embroiling the nation.
“It really gives some peace to what it is principals have been feeling all the while,” said Bob Farrace, public affairs director for the National Association of Secondary School Principals. “Principals really need to make sure the federal government has their back.”
But in many living rooms, public forums and politically charged spaces across the country — including the Texas GOP convention — Obama’s decree has merely intensified an already raging debate about gendered bathrooms and who should and should not be allowed to use them.
Found taped to a stall in a woman's bathroom in the convention Ctr at GOP convention pic.twitter.com/ZKVjZYv3VX
— Julie Fine (@JulieFineNBC5) May 12, 2016
Just hours after news outlets reported on the directive, which will be sent to all public schools across the country Friday, Texas Lt. Gov. Dan Patrick offered a doomsday outlook.
“This will be the beginning of the end of the public school system as we know it,” he told NBC 5.
Patrick and other top Republicans in America’s largest conservative state, had spent the day listening to Gov. Greg Abbott’s vows to unite with the state of North Carolina as it wages a legal battle with the federal government over the Tar Heel state’s new law requiring people to use the bathroom that aligns with the gender on their birth certificate.
— Greg Abbott (@GregAbbott_TX) May 13, 2016
And just this week, Patrick called for the resignation of a Fort Worth schools superintendent after he proposed policies more inclusive of transgender students.
Then came news of Obama’s directive.
“President Obama, in the dark of the night – without consulting Congress, without consulting educators, without consulting parents – decides to issue an executive order, like this superintendent, forcing transgender policies on schools and on parents who clearly don’t want it,” Patrick told NBC 5.
Patrick said he was criticized for involving himself in local matters, but that the Obama administration’s decree was a far more egregious government overreach.
“I got news for President Barack Obama,” Port Neches-Groves (Texas) Superintendent Rodney Cavness told 12News. “He ain’t my President and he can’t tell me what to do. That letter is going straight to the paper shredder. I have 5 daughters myself and I have 2,500 girls in my protection. Their moms and dads expect me to protect them. And that is what I am going to do. Now I don’t want them bullied… but there are accommodations that can be made short of this. He is destroying the very fiber of this country. He is not a leader. He is a failure.”
Conservative bloggers echoed a similar sentiment, one that basically amounted to: Here we go again.
As Obama’s time in the White House ticks away, the president wants his administration to leave a legacy of social reform, especially when it comes to issues like same-sex marriage, immigration, healthcare, clean air and climate change. Because Congress is under Republican control, Obama has mostly had to blaze this trail on his own. While doing so, however, the administration has in many ways left in its wake a mess of court and cultural battles that will likely wind up in the lap of the next president.
The Obama administration has at best a mixed record in the courts when it comes to using executive power unilaterally to change policies. Its efforts to shield millions of illegal immigrants from deportation without congressional approval were blocked by both a U.S. district judge who said Obama exceeded his legal authority and an appeals court, and are now awaiting the judgement of the U.S. Supreme Court.
In February, the Supreme Court blocked a key part of Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged. On Thursday, a federal judge struck down a portion of Obama’s signature Affordable Care Act health law, ruling that Obama exceeded his authority in unilaterally funding a provision that sent billions of dollars in subsidies to health insurers.
In directing schools across the nation to provide transgender students with access to suitable facilities — including bathrooms and locker rooms — that match their chosen gender identity, the administration virtually guarantees another potentially long court struggle over the scope of presidential power, in this case, the power under Title IX of the Education Amendments of 1972 to use a threatened cut-off of federal education funds to tell states how to run their bathrooms.
The battle was already well underway in the U.S. Court of Appeals for the 4th Circuit, which ruled on April 19 in a 2-1 decision that the Gloucester County (Virginia) School Board must defer to the Department of Education’s interpretation of the Title IX. The case, which involved a transgender boy seeking to use the boys’ restrooms at his high school, is being appealed to the full appeals court for reconsideration after the ruling by a three-judge panel of that appeals court.
The majority ruling and a dissent in the case offer a glimpse of the arguments to come. Judge Henry F. Floyd, joined by Judge Andre M. Davis, said that whether or not they approved of the government’s interpretation of the law, the court was bound to defer to it.
The dissenting judge, Paul V. Niemeyer, reflecting an argument currently being made by North Carolina and others in the fight against the government, took issue with the deference and the interpretation and raised a “bodily privacy” right that is increasingly being heard from groups opposed to the administration’s attempts to force change in bathroom and locker room policies.
“Across societies and throughout history,” Niemeyer wrote, “it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind. ”
Interestingly, the two judges in the majority conceded that they agreed with Niemeyer about bodily privacy, but noted that “It is not apparent to us … that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department’s interpretation of its own regulations.”
Correction: An earlier version of this post misspelled the last name of Port Neches-Groves Superintendent Rodney Cavness.