There is no federal law that requires any educational institution to refrain from discriminating on the basis of sexual orientation. There are only federal laws that require institutions to refrain from discriminating on the basis of sex.
Like it or not, that is a fact. The Obama administration decided that it would be a good thing if schools that receive federal funding accommodated transgendered students by permitting them to use bathrooms and locker-rooms that aligned with their own subjective sexual orientation. Having made that decision, there were two ways the Obama administration could have proceeded to achieve that goal.
One way would have been to candidly announce that the current legal framework did not permit the federal government to impose such a requirement on schools.
{mosads}It then would have been appropriate for then-President Barack Obama to argue in favor of federal legislation that would have required educational institutions receiving federal funding to accommodate transgender students. He almost certainly would not have succeeded in obtaining such legislation before the end of his term, but the debate would have been launched in a straightforward and honest way.
And a legitimate part of Obama’s legacy would have been the commencement of an honest debate about how transgendered people should be treated.
A second way to proceed would be to pretend that the administration had power it actually did not have under the law.
The Obama administration chose the second way: it pretended that statutes that prohibit discrimination based on sex were equivalent to (non-existent) statutes that would prohibit discrimination based on sexual orientation.
The Obama administration prided itself on paying close attention to the teachings of science, and it mocked those who were not sufficiently attentive to science. Yet, that same administration chose to accept the view that, if an individual subjectively feels very strongly that his or her gender identity is at variance with fully functional sex organs, that very strong subjective feeling would change the individual’s sex.
I don’t believe serious students of the science of human reproductive biology would accept any such proposition.
But the Obama administration was willing to accept that proposition, and now Trump administration has decided to call a halt to what has been, at best, a charade. Of course, the new administration did not have to rescind the Obama administration’s edicts regarding transgendered students.
It’s a safe bet that, if Hillary Clinton had been elected, her administration would have left those regulations in place.
Still, no matter who won the White House, the Obama regulations would continue to lack any adequate legal foundation. So, the new administration refuses to continue with the charade, and, very predictably, Pres. Trump is portrayed in many venues as the bad guy in the drama.
But, before jumping on the bandwagon of condemnation, it might be worthwhile to stop and consider all—not just some—of the issues that are at stake.
Transgendered students and their supporters believe that it is important that they be accommodated in accordance with their subjective sexual orientation. That is a given, and they are of course entitled to those very strong opinions. But there are other people who have different views, and they too are entitled to their opinions.
Even those who feel most strongly on either side of this issue ought to appreciate that it makes a difference how we, as a society, come to decide how transgendered people should be treated.
If we want to live in a society where transgendered students must be accommodated, it should be obvious that we must decide as a society that that is what we want. And the way we decide that kind of thing as a society is to have our elected representatives pass legislation that codifies such accommodations into law.
If there is not enough political support now to win such accommodations, then those who favor them have to labor in the political vineyards until sufficient support has been created.
That is how democracy works.
It is a kind of cheating to rely on a particular administration’s regulations or guidance to accomplish that end, when the law does not give that administration, or any administration, the legal power to issue such regulations. That kind of cheating might, for a time, accomplish its end. But, if a new administration decides to play the game by the rules, the cheating will end very abruptly.
Now, what we have is a mess. Recriminations will abound; town hall meetings will be disrupted; feelings will be hurt; names will be called; resistance will be fierce. And the plain fact is that the mess is the fault of Obama.
In this area, as in so many others, Obama thought it would be a terrific idea to pretend to have greater legal authority than he actually had. As a result, the hopes of millions of people were falsely raised by the misleading illusion of presidential authority; those hopes were dashed when there was a change of administration.
Perhaps that’s what Obama was referring to when he ran on the slogan of “Hope and Change.”
David E. Weisberg is an attorney, and a member of the New York state bar. His writing has appeared in the Social Science Research Network and in The Times of Israel.
The views expressed by contributors are their own and are not the views of The Hill.