Where So-Called "Trans Rights" May Violate Title IX - Granite Grok

Where So-Called “Trans Rights” May Violate Title IX

Transgender bathroomNew Hampshire is on the verge of denying rights to people under the pretense of providing them. The Trans bill sailed through the House under the cover of giving something to a class of persons what they already had under existing law. Rights they’ve been exercising all along.

In the process, the Legislature has handed lawyers a colossal bag of easy money while complicating the lives of thousands of business owners and hundreds of local municipalities who must know address the needs of an unknown number of claimants to these rights. Unknown because anyone can claim them at any time in a toxic culture where daring to question their veracity is equally treacherous.

And while being handcuffed by bureaucrats is troublesome innovative individuals will find some way to manage. Public and government services, however, have another problem. Title IX is a federal law which declares,

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . .

That,

[N]othing contained herein shall be construed to prohibit any educational institution . . . from maintaining separate living facilities for the different sexes.

and,

A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.

Sex and gender, we have been told (perhaps “bullied into believing” is the better term) are not the same thing and nothing in Title IX is, can or could be construed to legitimately suggest that the authors meant what they didn’t include or infer. Congress was very specific in its mission.

The office of Civil rights, under Mr. Obama, issued it’s dear colleague letter, inferring ramifications for refusing to implement its desired trans-facilities policy as a tool of intimidation with no force of law behind it. But as is often the case things Obama did by executive fiat have been embraced by the ruling class and its buddies in the court system as if they were etched in tablets touched by God which no future prophet (or president) may undo depsite having the exact same officiating authority granted by the people and the Constitution.

Title IX wasn’t written for the new age of transsexuals from Transylvania, Baskin Robbins 72 genders, or anything like it. And the legal complications matter.

For the reasons I explain in my amicus curiae brief (with Peter Kirsanow) in Gloucester County School Board v. G.G., I am confident that Sessions did the right thing under federal law. Title IX specifically allows schools to separate students by sex for the purposes of bathrooms, locker rooms, and showers. We could argue about what “sex” means until the cows come home (though I think that argument is fake), but it doesn’t matter, because the separation is permissive, not mandatory. Schools can separate students on the basis of astrological sign, first letter of their surname, or anatomy if that is what they prefer. Title IX does not interfere with their flexibility.

The brief is fascinating reading, which most people won’t believe nor will they likely agree unless they happen to be into the sausage-making of politics. Many will ignore the points made there (or here) and just call me a bigot. Let let me save you the trouble. I don’t care so save your breath. What I do care about is the financial burden the state legislature is placing on businesses and municipalities.

In the 1970s, nobody would have thought that an anatomical boy who identifies himself as a girl and a girl were members of the same “sex.” This is not to say that they would not have cared about the understandable sensitivities of a student with what is now known as “gender dysphoria,” see Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).3 Members of Congress might have recognized that such a student may sometimes require special accommodations. But they never would have said that if a school failed to group an anatomical boy with the actual girls for the purposes of “separate toilet, locker room, and shower facilities” organized “on the basis of sex” that it was engaging in sex discrimination. Title IX was not designed to deal with transgenderism.4

Discrimination lawsuits are coming. Schools and local government will be pilloried. The climate for attracting new business to New Hampshire just got hostile.

HB1319 passed the House this week and will not be vetoed by Gov. Sununu. He simply lacks the ideological stones to stand up and protect local government or small business owners from the ramifications of progressive virtue signaling.

This will have very expensive long-term implications that could cost taxpayers millions and infringe on their rights in the process. Not to mention the problems of privacy and women’s health and safety, which are put at risk from the threat of predators who will misuse the changes to gain access to spaces where women are at highest risk.

The outside money that made this possible will not help with the Lawsuits, and legal entanglements on tap, all to advance an idea for which there was no statutory need.

But here we are.

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