The Obama administration is pushing hard to change longstanding social and legal norms about gender. No longer is the fight about achieving equality for women in education and the workplace. The effort now is to transform gender itself into a fluid construct—whatever anyone wants it to be, wholly-separated from biology and genetics.
But wait. Obama’s attempt to make gender socially and legally irrelevant is so riddled with inconsistencies that the whole effort seems irrational.
The Department of Defense recently issued a handbook to guide implementation of Obama’s transgender policy in the military. Among other things, the handbook sets official policy for when transgender persons can begin using restrooms, showers, and billeting facilities of their preferred gender.
Under the new policy, transgender service members cannot use facilities associated with their preferred gender until they complete the gender transition process and their gender marker is changed in personnel files. While surgical change is not required for full transition, the service member must provide documentation that medical transition to their preferred gender is complete. The gender marker will be changed only after legal documentation of gender change by birth certificate, US passport, or court order.
Obama’s transgender military policy also repeatedly emphasizes respect for bodily privacy. The handbook exhorts transgender service members to consider the privacy needs of others in locker rooms, showers, and living quarters, even to the point of adjusting their personal hygiene hours.
It authorizes commanders to make reasonable accommodations to protect privacy, such as installing protective screens or adjusting the timing of the use of such facilities.
When it comes to schoolchildren, the Obama administration has different rules. The Departments of Education and Justice issued joint “guidance” to schools nationwide saying that federal law requires schools to permit transgender students to use restrooms, locker rooms, and other changing facilities according to their asserted gender identity. There is no requirement of medical transition or legal gender change—in fact, the guidance letter specifically disavows any need for medical diagnosis or treatment as a prerequisite to having access to restrooms or changing facilities. Unlike military leaders, school officials have no way to verify the claim to transgender status.
What about bodily privacy? After all, most parents don’t want their 12-year-old daughters undressing and showering next to somebody with a penis. Obama’s “guidance” to schools places the burden for avoiding such awkward and embarrassing situations squarely on non-transgender students. They must seek alternative arrangements or facilities.
Shouldn’t schoolchildren have at least the same privacy rights as soldiers? The fact that they don’t reveals the upside-down world of Obama’s transgender policy.
There’s more. The Obama administration’s new policy for transgender service in the military looks a lot like North Carolina’s HB2 when it comes to transgender access to restrooms, showers, and changing facilities.
HB2 requires that multi-occupancy bathrooms and changing facilities in public schools and government agencies be separate based on biological sex as reflected on one’s birth certificate.
The bathroom and changing facility provision of HB2 creates a simple rule: if you have male anatomy, you use the male facility; if you have female anatomy, you use the female facility.
Both President Obama and Attorney General Lynch denounced HB2, the latter comparing it to Jim Crow-era laws that segregated bathrooms on the basis of race (yes, really). The Department Justice sued North Carolina in federal court, claiming the law violates federal civil rights statutes.
HB2 specifies that access to government restrooms and other changing facilities is determined by biological sex as shown on one’s birth certificate. But like the military’s policy, transgender persons in North Carolina legally can use the restroom or changing facility of their preferred gender if that gender is reflected on their birth certificates. North Carolina permits changing the gender marker on one’s birth certificate after sex reassignment surgery. Several other states allow altering a birth certificate after receiving appropriate gender transition treatment.
{mosads}Neither HB2 nor Obama’s military policy permits transgender persons to use restrooms or changing facilities of their preferred gender simply because they self-identify as transgender. The military policy requires completion of the medical transition process and legal documentation of gender change. HB2 requires legal documentation in the form of a birth certificate, which can be changed after surgical reassignment or other appropriate medical treatment.
Obama’s transgender military policy suggests that the reaction to HB2 has been contrived and excessive. We should not be surprised. Obama politicizes everything, from the IRS to the FBI to the Justice Department. Why not gender?
Wallace is a law professor at Campbell University School of Law. The views expressed are his own and not attributable to Campbell University. You can follow Campbell
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