Commentary: Principles to guide a nation through issues that divide us

Peter H. Schuck

is an emeritus professor at Yale Law School and author of "One Nation Undecided: Clear Thinking About Five Hard Issues That Divide Us" (Princeton University Press, 2017)

As a campaigner, President Trump expressed sympathy for allowing transgender students to use bathrooms, locker rooms, and other school facilities corresponding to their chosen identity. This was a policy the Obama administration adopted in 2016, threatening to cut off funds if schools continued to require bathroom use according to students' sexual identity at birth. Trump quickly rescinded that policy, deferring to his attorney general over his education secretary.

This issue, which Trump seems eager to intensify, raises important legal and policy questions and feeds into the culture wars that already divides Americans.

Lower courts have divided over whether this situation is covered by Title IX, which in 1972 barred discrimination "on the basis of sex" in any federally funded education "program" or "activity." The main legal issues are whether "sex" included assignment to bathrooms based on gender identity at birth or by subjective choice; whether going to the bathroom is an education "program" or "activity"; and whether the traditional arrangements constitute "discrimination."

This dispute may go to the Supreme Court, although it may prefer waiting for a case based on Trump's policy.

The lawyers will search for the intent of Congress 45 years ago when few if any people considered transgender bathroom use. Advocates will emphasize that some transgender students have been bullied and criminally assaulted by fellow students for being different, leading in some cases to depression and even suicide. (Trump's policy affirms that schools must protect them from discrimination, bullying, and harassment, but advocates hope to restore the Obama policy).

It is doubtful that Title IX covers transgender bathroom and locker-room choice, but the more important question for the future is what a sound policy would look like - since the new Congress and president may seek to clarify or change the law.

In One Nation Undecided, I analyze how we should think about such issues - poverty, immigration, campaign finance, affirmative action, and religious exemptions - going forward. Rigorously defining the bathroom issue is the first step. Advocates define it most broadly as one of human rights, equality, and dignity. But we should instead focus on the specific context of the conflicting claims. Transgender people want to affirm their gender identity during their few minutes of school bathroom use, and the law that already protects them against bullying and harassment must be enforced. Their demand for choice is important, but it is certainly not a constitutional right; courts extend such rights only to certain claims essential to individuals' liberty and well-being - and only after their claims are balanced against the legitimate claims of others.

Does preferring chosen-identity-based facilities meet this demanding constitutional test? I think not. Dignity and identity claims are not a trump (no pun intended) in conflicts like this where both sides can plausibly invoke those values.

Several possible approaches can help resolve such conflicts. One is the principle of choice. How hard would it be for schools to provide choice with stalls that better protect users' privacy, or provide nonsegregated bathrooms with signage putting people on notice when they enter?

A second approach (used in antidiscrimination and religious accommodation law) is to insist that any limit on transgenders' facility choices must be the "least restrictive alternative." Again, this may mean privacy-enhancing stalls and dual-sex bathrooms. Other solutions may be needed for locker rooms.

A third principle is probably the most important: federalism. Law professor Rick Hills invokes federalism to resolve "reasonable and deep disagreements" about practices in situations where no social and legal consensus provides a baseline for resolving conflicting rights claims. In such situations, Hills argues, national rules should be avoided in favor of state or even local solutions, thus allowing different arrangements and experiments. This is how our system handles most policy differences where constitutional rights are not at stake.

Rules on transgender use of facilities are a good example. Few Americans considered this a civil rights issue until very recently, and fewer still will view this as equivalent to racial or sex discrimination. Transgender people, whose identity is often scorned, have demonstrated admirable courage. Courageous or not, antidiscrimination law should protect them in employment, housing, public accommodations, and all other aspects of their lives. Fortunately, states and localities are increasingly doing this, and anti-transgender policies are meeting growing political and economic resistance.

Do most transgenders find the familiar facilities patterns stigmatizing - or just inconvenient? How acceptable will compromise approaches be to both transgender people and others? What are the real trade-offs? What is the actual relation between familiar facilities patterns and bullying or violence? Let's find out by allowing diverse approaches until we know the answers.

schuckp@mercury.law.nyu.edu

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