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Posted by on May 4, 2017 in Cities, Gays, Government, Law, Politics | 0 comments

Does it Matter Who uses the Bathroom? Transgender Rights in Bigger Context

We were politically obsessed about the bathroom. Everyone had an opinion, including people like me who try to be aggressively apathetic to the issue. It’s a miracle that a tangential issue became national political conversation – aren’t there other important things to worry about like the economy, geopolitics, and the broader fight for LGBTQ civil rights?

I’ll admit, though, that these “little debates” do hold some value. In the sixties, African Americans were protesting against segregated bus seating and whatnot. But what’s key is that the fight for civil rights was targeted as a whole against systemic American racism – not specifically and solely on water fountain or bus seating use. The unequal access to water and public transportation among races were symptoms of a bigger problem that the movement continued to challenge.

I contend that we can draw a parallel between the civil rights movement in the sixties and the current fight for LGBTQ rights. Both movements challenge smaller issues that are symptoms of a greater struggle, and when I answer questions like “should gay marriage be legal?” or “should transgendered people use whatever bathroom their gender identifies with?” I always fall back on a fundamental, concrete worldview on equality and whatnot. It’s not completely productive to engage the opposing viewpoint because their morals are fundamentally different. Instead, we should channel our energy elsewhere and productively to establish and defend our beliefs.

68% of Americans already believe gay marriage should be legal, and the Obergefell v Hodges case which essentially enshrined that sentiment into law is change worth celebrating. If we want to celebrate more victories, we should channel our energy and time into understanding more legal and political challenges worth fighting. And these challenges, specifically pre-emption and a legal question in the G.G. versus Gloucester County School Board case, could have impact America beyond LGBTQ rights.

Pre-emption is this legal doctrine that gives states supremacy over city laws. When the city of Charlotte famously passed Ordinance 7056, the anti-discrimination law that allowed transgender people to use thebathroom their gender identifies with, North Carolina knocked it down with the Public Facilities Privacy &Security Act (HB2). Such an action is frustrating not only for LGBTQ people in Charlotte, but the entire community of the city. In 2015, a proposed nondiscrimination ordinance would’ve made sexual orientationand gender identity legally equally protected, but failed 6-5 when the controversial bathroom measure wasremoved. Two Democrats voted against removing the measure from the bill, and then voted against the bill
overall because they couldn’t support half a measure.

Attacking more than just LGBTQ rights, HB2 bans local minimum wage laws. This completely undermines the self-autonomy that cities, as distinct socio political communities, should possess in setting their own rules and deciding their own futures. Cited in the Atlantic, Harvard Law professor Gerald Frug explains that: “The popular conception of what cities do runs in direct conflict with the legal reality.”

“Most people think, We have an election here, we elect a mayor and our city council, we organize our democracy—we should have a right to control our own city in our own way.”

“You go to any place in America and ask, ‘Do you think this city can control its own destiny?’ ‘Of course it can!’

North Carolina, with its GOP majority General Assembly, is overriding the laws set by a 9-2 majority Democrat Charlotte City Council. Preemption trashes the idea that American citizens, transgendered or not, can live the way they decide. This isn’t good for the American Dream.

On a federal level, another legal issue worth noticing is the federal court case, G.G. versus Gloucester County School Board. According to The Economist, this case “puts a human face on the issue and highlights the struggles” for over 1.4 million American transgender adults. If plaintiff Gavin Grimm – who famously uttered that LGBTQ people “will not be beaten down by this administration” – wins the case, transgender students can assert the same rights as other gender under Title IX of the 1972 Education Amendments.

More significantly, is the first legal question that the 4th circuit court is tasked with in the case: “Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law? and was adopted in the context of the very dispute in which deference is sought.” In layman’sterms, the court is being tasked to decide if nonexistent laws have weight.

When Trump pulled back the Obama guidelines for the Department of Education to let transgender students use the bathroom of their choice, along with the Department’s letter in support of Grimm, he did so to undermine the G.G. case. The 4th Circuit court’s decision to rule in favor of the plaintiff relied on that letter, so after Gloucester County appealed to the Supreme Court, the Court asked the circuit to review the case because of judicial deference issues. Judicial deference is the condition of a court yielding its judgment to that of another legitimate party. In this case, the court deferred the decision if Grimm was allowed to use the bathroom he wanted to the Department of Education’s guidelines, which is a body that has legal power and jurisdiction over a public school bathroom.

Our judicial system legally acknowledges and questions the Trump administration’s political cheap-shots. Is his presence, within existing legal framework, welcome or not? The executive, after all, does have control over agencies like the Department of Education, but is he flouting law like the autocrat the left slander him as? If the court rules in favor of Grimm for this question, this opens up all kinds of opportunities to sue the White House. Pulling out regulations and guidelines that were set by Obama for climate change, health care, immigration, and foreign policy, then there could be a flurry of lawsuits that keep those in place. If a guideline from Obama, rescinded by Trump, is deemed to have legal weight because of this court case’s ruling, then America can maybe continue fulfilling the Paris Agreement. Possibly, insurance protections under Obamacare can be sustained, and Obama’s legally frozen immigration executive orders (DAPA and DACA) could stunningly grant amnesty to illegal immigrants. Perhaps the Iran Deal (the Joint-Comprehensive Plan of
Action – an executive agreement among Heads of State), although with no timeline for sanction relief, will continue.

The massive implications on these legal issues are worth noticing not just because they’re fascinating, but they’re also deeply important. I’d like to argue that these controversies surrounding the transgender rights and bathroom use debate are far greater than the movement itself. Within the framework of pre-emption, not only are civil rights being crushed, but also the fundamental identity of cities – distinct bodies that share a culture, socioeconomic dynamic, and lifestyle than the states they are planted in. Within the GG vs Gloucester County case, not only are civil rights being put to the test, but also 1) the power of the President’s office, 2) the power of the Trump administration, and 3) the power of Obama’s legacy in America. Many wonder if historians will record Obama as a President with truly lasting impact; his agenda could miraculously pushed forward as he water skiis in retirement.

We can sympathize with the fight for LGBTQ rights, but the controversies that our nation faces as a whole are far greater. If we truly care about our comrades, gay or straight, we may need to take a stand against problems that are bigger than individual struggles foremost

Allen Wang was born in Houston, Texas, has lived in Singapore for 5 years, and is a student in the George Washington University class of 2021. As a founder for his Students for Political Activism Club, Allen is currently working to establish the club beyond the Singapore American School. Neither ideologically liberal or conservative, he believes in thorough awareness of the facts before making any conclusion.

PHOTOS: Photo one via Flickr, Photo two via Flickr, Photo three Official White House Photo by Pete Souza [Public domain], via Wikimedia Commons