One of the few attempts to cross the pons asinorum of Republican presidencies that the current administration has made was its rescinding a 2016 overreaching Obama administration policy requiring public schools (and other schools receiving Title IX funds) to let boys use the girls' bathrooms and shower and locker rooms. That was in February.
But if you thought it was over, you were wrong. Now the Trump administration has issued a new memo to Office of Civil Rights field officers stating that they should treat it prima facie as a case of "gender-based harassment" if a Title IX-receiving school "refus[es] to use a transgender student's preferred name or pronouns when the school uses preferred names for gender-conforming students...." Don't you just love the insinuation that calling a real girl student "she" is just using a "preferred" pronoun of the real girl, as if when you call little Sally "she" you're just going along with what she prefers? Hence, you're harming little Jimmy and harassing him on the basis of sex if he thinks of himself as female and demands that you call him "she" as well, and you refuse, since you used Sally's preferred pronoun but won't use Jimmy's. Cute, huh?
The memo to field officers (full text here) admits (with as much regret as bureaucrats allow themselves to show) that it cannot "rely" on the Obama administration's "dear colleague letter." Nonetheless it sends people to a pdf that remains on the government's web site here.
This pdf was issued in the Obama administration and at the same time as the earlier Dear Colleague Letter, which it explicitly refers to, and which has now been rescinded. It consists of a bunch of...shall we say...suggestions...about how various state schools are "supporting" transgender students. It carefully says (cough cough) that it isn't endorsing these practices, but it is all made up of Q & A with normative language, such as "How do schools ensure that a transgender student is called by the appropriate name and pronouns?" So now the Trump administration is referring to this same document with its Orwellian reference to "emerging practices for supporting transgender students."
Schools that receive Title IX could easily get the idea (can't imagine why) that they could get in trouble if they reject the entire transgender nonsense and refuse to go along with it.
None of this is remotely required by law. Some legal eagles will refer to the court decision Price Waterhouse (1989), which was about a "macho" woman lawyer, not about transgenderism. The 11th circuit court went much farther in Glenn v. Brumby (I wrote about that here), but even that decision, which was clearly wrongly decided, didn't get around to talking about pronoun use.
In no way, shape, or form is the Trump administration required by the law to persecute schools for refusing to treat boys who think they are girls as girls and thus affirm these people's delusions, no, not even in non-bathroom areas like pronoun use.
This is a disgrace on the part of the administration. It sends the schools back into a situation of serious uncertainty about just precisely how far they have to endorse transgenderism. It keeps them constantly jumping, with, of course, the hope that they will pro-actively embrace the agenda to avoid getting into trouble. It leaves them at the mercy of the case-by-case decisions of a bureaucracy that is sending a clear signal that it is in favor of at least some aspects (or more) of the transgender agenda and intends to enforce them under existing law, even though transgenderism was in no way part of the meaning of Title IX.
This sort of weird semi-triangulation on the part of the current administration is becoming almost old hat. So, for example, the administration withdrew the Obama administration's active reporting requirements for federal contractors to prove that they are in compliance with new transgender requirements but left in place the requirement (also by Obama's executive order) of non-discrimination on the basis of "sexual orientation and gender identity."
So if you thought, "Well, at least he did that" concerning Obama and the bathroom order, the truth is, "Not really." Indeed, the memo doesn't even affirm explicitly that schools won't get in trouble if they refuse to let boys use the girls' bathrooms. Its examples imply as much but leave that, to some extent, up in the air along with everything else. The schools may hope that the line will be drawn there. (And what about sports?) Essentially, the rule of law is gutted by this kind of guessing game and power vested in petty bureaucrats working according to whatever social preferences they wish to impose.
Our republic, and the whole concept of a rule of laws and not of men, is lost in precisely such ways.
Comments (19)
Darn it, you've gone and stolen "pons asinorum" for Trump, when I was already on planning on using it for Francis. No fair! Francis was elected first. And was made a pons, officially. And became the other part (in office) first. Well, I hereby reserve the rights to the Francis-esque application of it. Dibs!
Some smart school teacher needs to take the name business head on and fight it: any person can get their name changed by going to court. Until the person changes their name, a school (or any other state official) SHOULD be using the name on the state records, and a suggestion that they must use anything else simply fails to have any sense to it whatsoever.
In any case, Trump has shown here that he is no friend to conservatives in any sense at all. But the odd thing here is that there is virtually no part of his support base that actually wanted this result of supporting the trans silliness. How does it benefit him politically? It might gain him a few liberal-ish (or libertarian) votes, but almost certainly at a greater cost of alt-right votes, seems to me.
Posted by Tony | July 2, 2017 4:16 PM
Well, I hate even to comment about the alt-right, but my experience is that plenty of them don't really care about social issues much. They might occasionally use some social issue or other as a stick with which to beat people into supporting their preferred candidate, but it isn't where their passion lies. Race and immigration are.
He might lose conservative votes. Still, I dunno. I find that any conservative who voted for him once isn't going to change his mind next term. This event may not even get much publicity.
And I have just spent my entire afternoon (most of it) arguing with an on-line friend, a lawyer, whom I actually like very much, about whether or not this memo to field workers by the Trump administration is just "following the rule of law" and returning us to some middle ground (maybe pronouns but no bathrooms, or something?) where it allegedly "was" in some legal sense before the Obama memo of May, 2016. Which is wrong, wrong, wrong, even as a description of on-the-ground bureaucratic reality.
If someone who voted for Trump has the energy to do that, then they'll probably be happy to listen to it when a legal geek tells them that.
As for why it happened, it probably happened like this: Trump is a social liberal anyway, so he put social liberals in place. Betsy DeVos, for example, is on board with the "LGBT" agenda, and a lot of conservatives got snookered into supporting her in a knee-jerk fashion because the left opposed her in a knee-jerk fashion. Note how often her name is mentioned in the new memo if you read it, btw. Almost certainly Candice Jackson, who wrote the memo, is also a social liberal.
Candice, and possibly Betsy, were probably unhappy that back in February the Trump admin withdrew the May, 2016, Obama dear colleague letter. They are now in damage control mode. So Candice has issued this Orwellian memo to field workers to push as far as she can and as hard as she can to make sure schools are bugged and bullied and threatened on Title IX grounds about the transgender agenda, while not *quite* telling them that they have to let "trans" students use the locker room and shower room of their choice.
There apparently are some legal folks out there who believe that "sex discrimination" somehow *really does* (in some postmodern legal positivist Platonic realm) include giving special protected class status to transgenders, and some of these apparently believe that a bright line can be drawn between letting Joey "be" Sally and playing along with it in "social" ways, on the one hand, and letting Joey use the girls' restroom and shower room, on the other.
No doubt Candice talked to some of those lawyers and crafted this memo in exactly this way for exactly that reason, with the intent to press forward in this way on the basis of Title IX (even though Title IX *never* was about transgenderism and was not *thought* to be about transgenderism until, like, a year ago) without waiting for stuffy old Congress to give transgenders specially protected class status by passing an actual *law*.
Yet *this* is called the "rule of law."
It makes me ill.
Posted by Lydia | July 2, 2017 6:40 PM
Wait, wasn't it the alt-rights who said they didn't really care about the rule of law? And the liberals certainly didn't when it came to their issues (cf Obama apparatchik nonsense like the dear colleague letter). So, someone in Betsy DeVos's shoes, using "rule of law" is just a smokescreen, a flat out lie to make people look the other way.
Posted by Tony | July 2, 2017 8:48 PM
Trump had many voters of various stripes, some of whom really do think of themselves as committed to the rule of law. A lawyer, as you can imagine, especially one who allows himself to think of all manner of case precedents (the good, the bad, and the ugly) as "the law" and tends to use the word more or less in practice to refer to "what the courts and the bureaucrats are probably going to say" has a very different concept of the rule of law than I do. In this case, such an elastic concept can be used in a bizarre and highly strained way in an attempted defense of this recent memo. Oh, no, it's not overreach; it's just expressing the "state of law."
Posted by Lydia | July 2, 2017 11:59 PM
I found some further history here.
http://education.findlaw.com/discrimination-harassment-at-school/title-ix-protections-for-transgender-students.html
It appears that the first Obama admin innovation to this effect was April 29, 2014. Which makes it a mid-second-term Obama admin. innovation, not a part of the pre-Obama status quo ante.
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
Interestingly, the February 22 "rescinding" of Obama-era documents on this issue does *not* rescind the April 29, 2014, guidance, that stated that the Office of Civil Rights accepts claims under Title IX of discrimination on the basis of "gender identity." The Trump Feb. 22 document only rescinds later documents expressly referring to bathroom, etc., use. Interesting, huh?
https://www.ed.gov/news/press-releases/us-secretary-education-betsy-devos-issues-statement-new-title-ix-guidance
Posted by Lydia | July 3, 2017 11:42 AM
Tony,
I just wanted to quickly comment on this statement of yours:
The reactionary in me, quite frankly, would still be unwilling to call an obvious male student "Debbie" even if they had legally changed their name. What worries me is that in 10 to 15 years we will have all sorts of states that will make it easy for all these confused young people to legally change their name (and gender) and then if you don't call these people by their new names you will be charged with harassment.
I still can't bring myself to call Professor McCloskey (the relatively famous economic historian) anything but "Professor McCloskey" (i.e. I will never refer to him as "Deirdre", and I don't care how many interesting and smart books he writes and how many interesting and smart libertarians are his friends -- he's not a woman!)
Posted by Jeffrey S. | July 3, 2017 9:19 PM
Jeff, I'm with you on that one. Increasingly, state records are becoming the home of politicization and insanity. If a state allows three people to be put on a child's birth certificate, that doesn't mean a school ought to be obligated to agree that the child has three parents. If two men have a marriage certificate, that doesn't mean that a school is obligated to talk to a child about some man's "husband." Similarly, if crazy parents and crazy state officials change a little boy's name from "Tom" to "Debbie," the school should not participate in this child abuse and help to confuse the boy about whether he's a boy or not, even if the record was changed.
In any event, as far as names, the reality in a healthy school, as in a healthy family, is that kids have nicknames and so forth, shortenings of their names and the like, and those in authority decide on an ad hoc basis whether these are healthy or not and kind or not. In one case acquiescing in calling a student "Red" for the color of his hair might be fine, a term everyone uses with affection or neutrally. In another case it might be used derogatorily, and canny teachers would know that and not participate. Such a situation would never help the transgender agenda in a really good school, because a good teacher working with children, given freedom to make wise decisions, wouldn't go along with trans requests for "nicknames" that treat a boy as a girl or vice versa. In fact, in a *really* good situation, I can imagine a tomboy girl being called by a boyish nickname where there is no slightest gender confusion and everyone is comfortable (including the girl) and knows she is just a tomboy, but where a girl who is genuinely gender-confused would not be called by the very same nickname. "Bud" or whatever. This "discrimination" is what normal people understand by names like "prudence," "equity," and "wisdom."
Posted by Lydia | July 4, 2017 9:46 AM
Why can't a liberal say that "Yes, transgender people aren't the sex they think they are, but we should go along with what they think because discrimination increases suicide risk?"
Here's an article with links to studies linking discrimination with suicide risk: http://www.huffingtonpost.com/brynn-tannehill/the-truth-about-transgend_b_8564834.html
Unless conservatives have evidence that their preferred solutions to gender dysphoria are more effective than liberals' solutions, it seems liberals have the upper hand with respect to helping people with gender dysphoria.
Posted by ML | July 12, 2017 8:35 AM
"Discrimination" is just telling the truth. There is something utterly insane about the idea that an entire society has to enter la-la-land along with a crazy person, pretending whatever he is pretending, because otherwise he is more likely to commit suicide. And that people must be *punished* for not pretending with him. Even though this compromises all sorts of other goods--the privacy of non-crazy people, the ability of society to function smoothly in a wide variety of areas, and so forth.
And mutilating a person with a crazy obsession is obviously doing him a disservice. If he ever recovers from his obsession, the mutilation will still be permanent. Cutting off people's genitalia is already a reductio of such an idea, but for those already sunk so deep into the transgender insanity that they can't see this, what about cutting off both arms and legs? Both eyes? Hey, this guy "sees himself" as eyeless and I have a study here showing that he's more likely to commit suicide if we don't cut out both of his eyes surgically and then have everybody refer to this as normal and endorse it, so let's do it, and punish anybody who tells him that a wrong has been done to him. Sounds like a *great* idea.
I strongly question whether cutting off genitalia and other mutilations and harms to a body (puberty-blocking and transgendering hormones) actually decrease anyone's risk of suicide, for the simple reason that these are terrible harms in and of themselves. But in any event, drawing more and more people into this insanity, from childhood onward, is certainly going to *increase* the number of people at risk of suicide through having been horribly confused and abused. And punishing people for not affirming falsehoods about reality, human nature, and insanity is plain evil on every possible level. Societally, the whole thing is a postmodern nightmare and a disaster, and anyone who thinks that there is some simple version of "playing along" with those who just "are" transgender and that this is just a minor, simple fix that reduces suicides is blind.
http://dailysignal.com/2017/07/03/im-pediatrician-transgender-ideology-infiltrated-field-produced-large-scale-child-abuse/
Posted by Lydia | July 12, 2017 9:42 AM
Honestly, when I see lefties defend transgender insanity in a tone that suggests that they can't think why anyone would disagree with it, I kind of start to wonder why the Almighty doesn't send down fire and destroy us. In other related news (related to the question of whether our culture can be salvaged), Matt Walsh mentions today that the magazine Teen Vogue had a how-to guide on acts of sodomy *for teens* printed in their most recent issue.
Posted by Lydia | July 12, 2017 3:24 PM
I agree that the liberal solution is crazy, but I wonder if we conservatives have any alternative to offer that doesn't increase suicide rates. The more I think about it, the more I get the sense that any conservative solution is bound to fail as long as transgender ideology remains widespread.
I'm pessimistic about our chances of defeating that ideology though. I'm in a country where transgenderism is quickly gaining ground, and I can foresee it being enshrined in law in a decade or less. So I feel that, unless conservatives offer gender dysphoric people a workable, empirically-validated solution, then transgenderism will continue to gain ground.
Posted by ML | July 13, 2017 2:37 AM
The number of "gender dysphoric" people is not some kind of independent given. It's being continually inflated by insanity in the schools. One workable "solution" is alternative education methods that don't involve teaching children that they might be the opposite sex. Seriously, gender dysphoria doesn't usually just pop up out of nowhere. Moreover, please read the link I just posted. That pediatrician states that, if children who "presented" as gender dysphoric when there was less insanity were just left alone and *not* physically and psychologically abused (yes, it is abuse) by being given puberty-blocking drugs and told that they will go through surgical transition later (some 16-year-old girls are even having double mastectomies!), a *majority* of them resolved spontaneously after going through puberty!
So there's a "workable" solution. Just *don't* affirm kids in their confusions and leave nature to do its work. Ya think?
For those who don't resolve, again, affirming them in their insanity is *hardly* helpful.
If you're implying that somehow there is a prima facie case that affirming people in their insanity is good practice and a "solution" and that conservatives have to answer such a prima facie case by providing (insert vague implications here) some "solution" *other than* trying to help people to get in touch with reality, then I just reject the implication.
Transgender ideology is causing suicides, not preventing them, by confusing more and more people. We must fight it everywhere and not expose children and young people to it. That is our workable solution. If someone has already cut off his genitalia under the influence of this ideology, he's in a tragic, horrible situation. *We* who utterly abhor what has been done to him are not somehow responsible to make it all like it never happened. Such a person is going to be more vulnerable to suicide because he's been horribly harmed by what has been done to him. We need to affirm that he needs to get back in touch with reality as much as possible (this is called "detransitioning"), stop taking the harmful hormones, etc., though permanent surgery is, unfortunately, permanent.
Posted by Lydia | July 13, 2017 10:40 AM
Amen to everything Lydia says. I would just add that there is plenty of *empirical* evidence that the so-called "liberal solution" has in fact harmed people who identify as transgender -- read any of these Walt Heyer articles on all the people who have had transgender surgeries (or other interventions) and later came to regret that "help":
http://www.thepublicdiscourse.com/author/walt-heyer/
Posted by Jeffrey S. | July 13, 2017 1:49 PM
Yes, I should have mentioned. Here are points 7 and 8 from the pediatricians article I linked earlier. The whole idea that "transition" and "nondiscrimination" somehow prevent suicide is bunkum, just as one would expect. Meaning there isn't some case for conservatives to answer or some need for them to come up with an alternative. That would be like saying, "Hey, if I don't cut of George's head, he'll be very unhappy. You gotta *better* idea, huh, huh?"
Posted by Lydia | July 13, 2017 5:27 PM
This isn't just an indictment of transgender theory, but psychology, as a whole. We've seen the same pattern in the 1980's psychological treatment of pedophiles. It is stupid to transform society based on politics masquerading as science. Many garden variety psychological problems will self-correct given the right environment. There are serious disorders (most of which psychology does not understand), but many everyday problems are corrected by living by simple Christian principles.
The Chicken
Posted by The Masked Chicken | July 13, 2017 7:16 PM
" One workable "solution" is alternative education methods that don't involve teaching children that they might be the opposite sex."
Yes, supposing the law allows this at all is no longer a given sadly. Already in the UK a Jewish girls school is being told they will be shut down if they don't start teaching their girls they might actually be boys. Also in the UK, LGBT activists are complaining that a new compulsory sex ed law allows religious schools to teach about sexuality with respect to the tenets of their faith. http://www.independent.co.uk/news/education/education-news/compulsory-sex-education-human-rights-campaigners-government-loophole-faith-school-get-out-clause-a7608226.html
"Transgender ideology is causing suicides, not preventing them, by confusing more and more people. We must fight it everywhere and not expose children and young people to it. That is our workable solution."
Curious, were gender confused kids killing themselves even 10 year ago? How about 20, 30, 50, or 100? I dont remember this being a big issue even 10 years ago, and it could not have been on the radar screen just a few decades ago. It seems to me this "trans kids" must be "affirmed" or they are high suicide risks is a pretty recent phenomenon. Furthermore, who benefits from it? The trans ideologues, those kids are martyrs for their cause. They are the one's pushing the idea that suicide is a perfectly rational response to not being "affirmed".
Posted by DR84 | July 13, 2017 10:23 PM
There is plenty of evidence out there that at least SOME of it stems from identifiable physical / biological causes, such as in utero exposure to hormones. Try this, for example:
http://www.hormonesmatter.com/hormone-treatment-pregnancy-gender-variance/
All of the evidence for physical causes are, ipso facto, evidence that it is a disorder and not just "a different way of being human".
Whether they have been damaged in a way that is reversible or not (and there is far too little known about the ones that will not resolve on their own during puberty - and many cases will, like Lydia points out), being damaged by disorder cannot be made "better" by pretending that it is not a disorder. It is insane to think that pretending reality is not reality will make it better. Far better to treat it as a real disorder, and set about trying to find REAL cures for the disorder. Even if that takes us 150 years of research and effort.
But I can almost guarantee you: reducing the amount of hormones in our environment will help. Ditch the contraceptives. And the other sources of hormones too.
Posted by Tony | July 13, 2017 10:33 PM
But there is really no good way to gather data on this because the numbers are *wildly* skewed by the sociological insanity--parents who take a child's statement that he "wants to be a girl" with deadly seriousness, psychological counselors who suggest the idea in therapy to a troubled teen, and general teaching that "gender is fluid" now starting at very young ages.
Here's something I predict would be found if it could be checked: 5-10 years ago when homosexuality was a hotter, newer thing, young people would "come out" as gay, because that's what they were being encouraged to think. Now I suspect some disturbed young people who, ten years ago would have "come out" as gay will instead decide that they "are" the opposite sex. Think about it: If some girl was a tomboy when homosexuality was the big fad, the adults around her would encourage her to think that she might "be" a young lesbian. Now they would be more likely than before to suggest that she might "be" transgender. I'm guessing that the numbers are following the fads.
A *tremendous* amount of this is sociologically generated, particularly during times when young people are under stress or are feeling confused about themselves and their identities.
Posted by Lydia | July 13, 2017 10:41 PM
Absolutely. It's due to psychotic psychology theories and identity politics and other problems in the adults, not the kids. We won't be remotely able to get good numbers for the real ones any time soon. My main point was that the numbers of real ones are, almost certainly, much higher than they were 60 years ago, due to the prevalence of chemicals that are disturbing the normal development of children. So, it's possible that we are seeing something like a rise in the number of real cases by a factor of 10 (e.g. from 0.1% of the population to 1%), and that could be nearly obscured by reporting that stands at, say, 4%, of which 3% are 'false positives'. The false ones could then be 30 times higher than the pre-1960 number of real cases would have been. (I have no idea what the actual numbers are.)
It would be nearly impossible to conduct useful psychological research (with statistics) while lumping the real ones in with the false positives, so we can't expect the profession to produce anything worthwhile until they get their heads out of their posteriors.
Posted by Tony | July 14, 2017 7:58 AM