Bathroom Break

Of all the publications you’d expect to be in full sympathy with Transgender Bathroom Nihilism (TBN), The New Yorker would have to be high on the list. So it is notable when that august publication takes note of the incoherence and legal pitfalls of the Obama Administration’s recent diktat on the subject. The New Yorker thinks it may well unravel Title IX—a thing much to be hoped for:

It is of course unexceptional for the federal government to enforce federal law. But, unlike the Education Department’s many regulations, the Dear Colleague letter is not law, because it wasn’t enacted through legal procedures, involving public input, that federal agencies must follow when making law. The Education Department’s rule that schools must provide prompt and equitable grievance procedures to hear complaints of Title IX sex discrimination results from that required process and is legally binding. But the agency chose not to have such a process for its missive on transgender students. This is a familiar but controversial O.C.R. strategy.

Here I should pause long enough to point out that Shep Melnick of Boston College has been on this point for years now. See here, and here (PDF link) for starters.

Whether or not the federal government acted unlawfully, it has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms. . . But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. This is not wholly hypothetical. . .

Continuing to have segregated bathrooms could also put schools in a bind on Title IX compliance. According to the federal government, a transgender girl who is told to use the boys’ locker room, or even a separate and private stall, instead of the girls’ facility, has a claim that the school is violating Title IX. A non-transgender girl who’s told she must share a locker room with boys may also have a claim that the school is violating Title IX. . .

The sense that the Education Department has not looked down the road to consider the conflict is only confirmed by its penchant for announcing bold and controversial rules in letters, rather than through lawful processes.

When you’ve lost The New Yorker. . . Or maybe we should simply have recourse, once again, to the Roman poet Horace: “Naturam expelles furca, tamen usque recurret. You can expel nature with a pitchfork, yet she will hurry back. Maybe it’s time for the Obama DoJ and DoE to take a long bathroom break.