It seems as though President Barack Obama is bound and determined to render even the gay- and transgender-friendliest of libertarians horrified by his administration's lack of interest in limits on executive power.
Tonight The New York Times is reporting that the president is sending out a "decree" Friday telling all public school districts across the country to accept transgender students' choices to use whichever bathroom they are comfortable with. It seems unlikely the president is literally calling it a "decree," but that seems to be an apt description of how it looks. And while the letter is not a legally binding document in any way, the Times notes: "Schools that do not abide by the Obama administration's interpretation of the law could face lawsuits or a loss of federal aid." (Note: While I was in the process of writing this post, the Times story was altered to remove references to "decrees." But I'm keeping them here to indicate how it was initially presented.)
While I support a call for public schools (and government as a whole) to be required to accept and provide appropriate accommodations for transgender citizens out of respect for individual liberty, this is not, by any means, a settled legal matter.
There have been federal court rulings that have determined that discrimination against transgender people can be considered as a form of sex discrimination in violation of federal civil rights laws, but we are a long way from a final word here. The Department of Justice and North Carolina are suing each other over North Carolina's law forbidding transgender people using bathrooms that correspond to the opposite gender in schools and government buildings. It seems very likely that this whole fight is going to end up before the Supreme Court eventually, assuming Congress doesn't settle the matter with clarifying legislation first.
But that's not where things stand right now. As a comparison, imagine that the administration—after a couple of the early limited federal court rulings affirming that states should be required to legally recognize same-sex marriage—sent out a "decree" to all states and municipalities that they should all do the same now or risk punishment. Many people would be appalled at the lack of respect for the legal process by the administration, and it would have nothing to do with whether they supported same-sex marriage recognition.
And there's more:
As soon as a child's parent or legal guardian asserts a gender identity for the student that "differs from previous representations or records," the letter says, the child is to be treated accordingly — without any requirement for a medical diagnosis or birth certificate to be produced. It says that schools may — but are not required to — provide other restroom and locker room options to students who seek "additional privacy" for whatever reason.
Attached to the letter, the Obama administration will include a 25-page document describing "emerging practices" that are already in place in many schools around the country. Those included installing privacy curtains or allowing students to change in bathroom stalls.
In a blog post accompanying the letter, senior officials at the Justice and Education departments said they issued it in response to a growing chorus of inquiries from educators, parents and students across the country, including from the National Association of Secondary School Principals, to clarify their obligations and "best practices" for the treatment of transgender students.
I find nothing objectionable about providing such guidance, but it's extremely unseemly to start stomping around with threats. Let the court cases play out and do it the right way. Read the full story here. And note that the White House said today they would not attempt to deny federal funding to North Carolina during their legal fight over their bathroom law. How magnanimous of them.