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Federal Court Blocks Department Of Education Guidelines On Bathroom Access For Transgender Students

Transgender Bathroom Sign

A Federal District Court Judge in Texas has issued an order blocking the Obama Administration from enforcing guidelines it issued earlier this year regarding allowing transgender students to use the restroom or other facilities with which they identify:

A federal judge on Sunday blocked the Obama administration from enforcing new guidelines that were intended to expand restroom access for transgender students across the country.

Judge Reed O’Connor of the Federal District Court for the Northern District of Texas said in a 38-page ruling, which he said should apply nationwide, that the government had not complied with federal law when it issued “directives which contradict the existing legislative and regulatory text.”

Judge O’Connor, whom President George W. Bush nominated to the federal bench, said that not granting an injunction would put states “in the position of either maintaining their current policies in the face of the federal government’s view that they are violating the law, or changing them to comply with the guidelines and cede their authority over this issue.”

The judge’s order, in a case brought by officials from more than a dozen states, is a victory for social conservatives in the continuing legal battles over the restroom guidelines, which the federal government issued this year. The culture war over the rights of transgender people, and especially their right to use public bathrooms consistent with their gender identities, has emerged as an emotional cause among social conservatives.

The Obama administration’s assertion that the rights of transgender people in public schools and workplaces are protected under existing laws against sex discrimination has been condemned by social conservatives, who said the administration was illegally intruding into local affairs and promoting a policy that would jeopardize the privacy and safety of school children.

The ruling could deter the administration from bringing new legal action against school districts that do not allow transgender students to use bathrooms and locker rooms of their choice.

“We are pleased that the court ruled against the Obama administration’s latest illegal federal overreach,” Attorney General Ken Paxton of Texas said in a statement on Monday. “This president is attempting to rewrite the laws enacted by the elected representatives of the people, and is threatening to take away federal funding from schools to force them to conform. That cannot be allowed to continue, which is why we took action to protect states and school districts, who are charged under state law to establish a safe and disciplined environment conducive to student learning.”

Attorney General Ken Paxton of Texas praised the judge’s ruling.

“The court prevented the federal government from relying on its flawed, unlawful guidance documents to schools and employers in an injunction that is effective nationwide,” he said in a statement.

A spokeswoman for the Justice Department, Dena W. Iverson, said the department was disappointed with the decision and was reviewing its options.

In a statement, several civil rights organizations that had submitted a brief opposing the injunction called the ruling unfortunate and premature.

“A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination,” the groups — Lambda Legal; the American Civil Liberties Union and the A.C.L.U. of Texas; the National Center for Lesbian Rights; the Transgender Law Center; and G.L.B.T.Q. Legal Advocates & Defenders — said in their statement.

The ultimate impact of the Texas decision is unclear and likely to be limited, legal experts said. For one thing, more senior courts in other regions have agreed with the administration that transgender students and workers are protected by existing laws against sex discrimination, and their decisions will not be altered by the Texas ruling.

Also, the decision will not necessarily affect the outcome of other current cases. In the most prominent one, a federal court in North Carolina is weighing almost identical issues in suits brought by civil rights groups and the Department of Justice that seek to block a state law requiring people in government buildings, including public schools, to use bathrooms that correspond to the gender listed on their birth certificates.

Adding another major note of uncertainty, the United States Supreme Court has temporarily blocked a decision by the Fourth Circuit Court of Appeals that required a school district in Virginia to allow a transgender boy to use the boys’ bathrooms. The Supreme Court issued a temporary injunction until it decides, probably this fall, whether to hear the case.

If the Supreme Court does take the case and reaches a majority decision one way or another, then existing rulings by district and appeals courts could be superseded. If the Supreme Court takes the Virginia case but then is divided, four to four, on the issues, the Fourth Circuit’s existing decision in favor of transgender rights would take effect, although it would not be a nationally binding precedent.

The Texas lawsuit, filed by Mr. Paxton on behalf of officials in 13 states, argued that the Obama administration had overstepped its authority in a series of pronouncements in recent years, holding that discrimination against transgender people is a violation of existing laws against sex discrimination, including Title IX in federal education laws and Title VII in federal civil rights laws governing the workplace.

On some level this ruling is not entirely surprising given the fact that, at both the District Court and Circuit Court of Appeals level, the Fifth Circuit is dominated by appointees from the George W. Bush Administration who tend to take a conservative view of the law in general. In the past, for example, we’ve seen District and Circuit Court Judges bar enforcement of the President’s executive action to provide relief to certain classes of immigrants, a decision that was effectively upheld by a divided Supreme Court earlier this year. In this case, Texas and nearly the same group of states involved in the immigration litigation sued the Federal Government over the guidelines issued by the Department of Education which effectively advised every school district in the nation that in order to remain in compliance with civil rights laws, including Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 they must allow transgender students to use the restroom facilities that comply with the gender they identify with. From the beginning, this was a controversial ruling in no small part because it’s clear that when Congress passed these laws more than forty years ago it was fairly clear that they didn’t even consider the issue of whether or not the bars on discrimination based on sex or gender even applied to someone who identified as transgender. Additionally, the states contended in their complaint that the Administration had violated the provisions of the Administrative Procedure Act, a law meant to govern the promulgation and issuance of new regulations  by Executive Departments. Among the requirements of the APA is a notice and comment period during which the agency must allow members of the public to review and file comments on the proposed regulations before they go into effect.

In its ruling the Court found that, just as it had in the case of the deportation relief program, the Administration failed to comply with the relevant provisions of the APA due primarily to the lack of any meaningful notice and comment period. In doing so, the Court rejected the Administration’s argument that the guidelines were not formal rules, and therefore were exempt from the notice and comment provisions of the APA. The Court rejected that argument and held that, because the Department of Education had made clear its intention to enforce the guidelines in appropriate cases they did in fact meet the APA’s definition of the kind of rules that are included within the APA’s notice and comment requirements. Judge O’Connor, who was appointed to the bench in 2007 by President George W. Bush, also ruled that the guidelines themselves were based on an interpretation of the relevant laws that doesn’t seem to be supported by analysis. As I noted above, when Title VII and Title IX were adopted, there was absolutely no discussion evident that the law was meant to apply to situations such as this, or that the laws barring discrimination based on sex/gender in education were meant to apply to anything other than biological gender. In that case, the only way that the law can be expanded is for Congress to act to include transgender persons among the persons intended to be covered by the protections for discrimination based on gender.

This ruling comes at the same time as other cases involving the rights of transgender students are making their way through the Federal Courts. Earlier this year, the Department of Justice and North Carolina filed competing lawsuits related to a law passed by the North Carolina legislature that purports to ban allowing transgender students access to the bathroom of the gender they identify with in public schools, among other provisions that the Justice Department claims discriminate against LGBT citizens. Additionally, a case involving a student in Virginia is awaiting a decision by the Supreme Court as to whether or not it will accept an appeal of a Fourth Circuit Court of Appeals case that ruled against the school board and ordered that the student be granted access to the bathroom of their identity. Hopefully, if the Court does accept that appeal it will have a full compliment of Justices to hear the case. In any case, this appears to be the new LGBT rights battleground, so expect to hear much more on this issue in the future.

Here’s the opinion:

Texas Et Al v. United States Et Al by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    This strikes me as a commonsense ruling in terms of law, if not public policy. Transgender issues are essentially brand new in terms of national attention and such a fundamental transformation in our policy shouldn’t be enacted on the whims of the president without so much as a debate in Congress. The purpose of executive orders is to clarify on matters where existing legislation gives the bureaucracy a wide berth, not to carve out brand new policy areas.

    I do think the mandate is on the right side of history. We’ll get there as a nation rather soon, given how fast we’ve evolved on the gay issue. But this wasn’t ripe for executive action.

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  2. gVOR08 says:

    It’s Texas again. It strikes me as Republican politicians once again wasting state funds to pander to their RWNJ constituencies.

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  3. the Q says:

    So how young are we talking? Third grade? 8th grade? High school?

    Can a second grader use the bathroom they choose based on their own individual TG identification? And who is to say that an 8 year old cannot be “trans-gendered”? Teacher, Principal, school nurse?

    I can see a male, up to no good 5th grader, who goes into the girls restroom, is pulled out by a teacher, and then sues when stopped by the teacher from exercising their “gender” rights. Then gets a six figure settlement. Repeat, rinse about a million times.

    This is so ridiculous that I seriously have to question the Dem logic on this super silly bullschitt issue during the run up to the Presidential election. Come on, this affects what, one in a 20 thousand?

    Pay stagnates for wage earners who are making less than 1998 and the Dem leadership is wasting time on this relatively insignificant issue with the concomitant wingnut reaction? And we couldn’t keep this till Dec, then propose it after the election?

    Another feel good social/cultural irrelevant issue cooked up by the corporate warhawks of the DLC to salve their battered consciences. Screw the worker with the TPP, invade Ukraine, then help the TG piss wherever they want and in their minds they are FDR.

    As a lifelong lib Dem, it is absolutely absurd where the party is headed, but then when most voted for the most corrupt Dem in memory, instead of a true liberal like Bernie, nothing surprises me anymore.

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  4. the Q says:

    PS, and to all those on here who blasted the Bernie people for “wasting” their vote on a candidate who “couldn’t win” in the general. Go phuck yourselves.

    Against Trump, Bernie wins in a landslide while we all wait for the inevitable Oct email surprise which will make this race a toss up.

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  5. Tyrell says:

    These family type restrooms that I see at a lot of places could be a solution in some areas. But overall the schools require large restrooms that accommodate twenty or more students. Few schools have extra money laying around to spend on stuff like that. I remember when I was in school the restrooms were used for many activities : smoking, graffitti, gambling, comparing knives, looking at centerfolds, and shaking down some poor soul for his lunch money.
    “This restroom sanitized by the Floyd Johnwater Company”
    “Plumbing fixtures maintained by P.D. Philpott and Sons Plumbing Associates”
    Read “Under the Stalls” by Seymour Butz.

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  6. the Q says:

    PPS, this will also allow a “male” to go to the 24 hour fitness or YMCA and use the showers in the female locker rooms. Again, who monitors if the male is “actually” TG? It seems this is the choice of the individual.

    Look for perverts to test the law by walking into ladies locker rooms with gender impunity.

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  7. Argon says:

    Meh, ‘any port in a storm’ is my motto. My college has had bathrooms with mixed stalls for over thirty years.

    As for family bathrooms… This was anticipated long ago by the writers for Saturday Night Live:
    http://www.thehumorcolumnist.com/wp-content/uploads/2014/01/love-toilet.jpg

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  8. the Q says:

    I suppose the solution is like the ADA where you mandate a single stall for all to use.

    But to punish business into this kind of expense seems too extreme when the beneficiaries are such an infinitesimal part of the public.

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  9. Modulo Myself says:

    The people against transgendered rights are against transgendered people as a reality. They’re basically saying one can’t ever be transgendered, because otherwise Jesus, the Bible, First Things, and the science of natural law will all be wrong. They have nothing to offer anybody who does not want to admit that trans- people exist except as deviant freaks. They’re no different than the social conservatives who are happy to give religious people the right to discriminate but who refuse to articulate any fundamental rights for gay people.

    These aren’t positions designed with an objective other to isolate further the social conservatives who are paying the salaries of the culture warriors running the losing operation.

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  10. michael reynolds says:

    @the Q:

    Jesus Christ, again with the bathrooms.

    Remember when we couldn’t have gay people in the military because they might look at naked people of the sort that they enjoyed looking at? Remember how we have gays serving openly in the military now and yet society has not collapsed?

    I have a crazy idea: put doors on bathroom stalls and school showers. That way the faux transgenders can’t . . . look. . . and neither can the creepy gym teachers.

    I’d certainly rather this had come up six months from now and not now, but that’s political calculation. The issue itself is pretty easily dealt with. Unless they are egged on by idiot parents there will be exactly zero cases of 5th-grade cis-dudes trying to pass as trans girls to look at naked girls and then suing.

    Seriously, are you not aware that the internet is ready to deliver more naked chicks than any horny kid can possibly absorb? Nakedness is not the rare commodity it once was. Relax.

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  11. Just 'nutha ig'rant cracker says:

    In summary: eventually, society will make the right choice, but the President/Government shouldn’t push the decision on any one, what the right choice is really doesn’t matter because Congress should be consulted (they haven’t been? news to me…) before any decisions, right or wrong are made, schools can’t afford to have small bathrooms (despite the fact that 3 of the largest schools that I have ever visited or worked in had 10 or more small restrooms because the schools were too large for students to get to one centralized mass restroom), and job number one is to prevent the few pervy kids from claiming to be transgender so that they can use the wrong restroom.

    Why do I even read crap on this topic anymore? I knew I should have listened to my little inner voice saying “don’t click on this one, you’ll be sorry.”

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  12. Modulo Myself says:

    Hastert, Roger Ailes, one of the many anti-gay Christian ministers who ends up caught doing ketamine with a 19-year old from craigslist…it turns out that conservatives are people who are terrifyingly confused about their own sexuality or they are people who view sex as an act of quid pro quo, one stripped of everything except the need to hurt, control, and win. So with that view in mind an eleven-year old who says they are the ‘wrong’ gender is either running a scam in order to trick others into sex, or they’re confused as any repressed Christian. Conservatives just do not understand humans, a class which includes all conservatives. And conservative philosophy is around to explain that this state is the best of all possible states.

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  13. Slugger says:

    As I understand it, the vast overwhelming majority of child abusers/rapers are white males living outwardly normal straight heterosexual lives. My child psychologist brother-in-law living in Cook County has never seen a child molested by a trans person. Often the evil doers are relatives or authority figures like teachers and religious professionals. The laws about bathrooms are protecting things that don’t happen.

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  14. Tyrell says:

    @michael reynolds: School showers: around here there are just open, “gang” type of showers and dressing rooms like we had in school. Most of the school buildings here date from the mid 20th. century and earlier. And most school systems are already under water on their budgets. The kids around here have already been going door to door selling candy, jewelry, and magazines. This to raise money for copy paper and technology (calculators). So any sort of updating, renovating, upgrading, or moderating is out of the question. And the school board has to have enough for the superintendent’s big yearly bonus !

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  15. Matt says:

    @Tyrell: No one used the school showers when I was in highschool back in the 90s and according to the kids I worth with today that hasn’t changed. Showers are irrelevant..

    Then again you believe that there are still people going door to door selling vacuums and that’s a large reason why unemployment isn’t higher… You know part of your standard rant about the economy and how the jobs we’re gaining really suck…

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  16. Tyrell says:

    @Matt: I hear that. Times have changed. Our pe uniforms had to be washed every week.
    Our pe teachers lined us up and checked for the correct socks and shoes. Anything not up to snuff and it was 20 laps (5 miles). Everyone had to shower.
    Things have gotten soft now.

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  17. SKI says:

    Any story about this ruling that doesn’t note that the plaintiffs chose this judge specifically (recruiting a school district from a location where only this judge takes cases) is missing a key fact.

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  18. An Interested Party says:

    This is so ridiculous that I seriously have to question the Dem logic on this super silly bullschitt issue during the run up to the Presidential election.

    Written by someone who has never had to endure any discrimination for being transgendered…nice empathy there…

    Against Trump, Bernie wins in a landslide while we all wait for the inevitable Oct email surprise which will make this race a toss up.

    As if Bernie wouldn’t have been attacked in a million ways by the Republicans? Oh please…no one will ever know how Bernie would have done in the actual general election so spare us all the bull$hit from polls of hypothetical matchups…

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  19. James Pearce says:

    I read that Target is spending $20 million to upgrade its stores with unisex bathrooms. They’ve been under boycott for their tolerant bathroom policies. Guess it didn’t work.

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  20. @James Joyner:

    I tend to agree. Even if one agrees with the idea that transgender students and adults should be allowed to use the restroom that comports with their gender identity, how that is accomplished is as important as the fact that it is accomplished. In this case, I’ve found the legal arguments that the DoE/DoJ make here to be rather dubious given the fact that it’s rather apparent that Congress did not intend the laws barring discrimination based on gender to apply to the concept of gender identity, which is something that most people don’t understand. The idea that a bunch of un-elected bureaucrats and political appointees are essentially making that decision on their own is a troublesome perversion of the idea of representative democracy.

    This is a job for Congress, not unelected bureaucrats at DoE and career lawyers at the DoJ

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  21. Mu says:

    In any normal political system this would be solved with a 1 min action of the legislature. “Title IX applies to biological gender” or “Title VII applies to the gender the person identifies with”. We’re the only ones who try to solve a new issue based on 50 year old legislation, that had nothing to do with the issue, through the courts.

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  22. @Mu:

    The other option is that Congress doesn’t act, because that’s where public opinion on the issue is.

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  23. Loviatar says:

    Hey guys, stop picking on the Republicans. They’re only a little misguided, I’ve been told they’re really good people.

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  24. Gavrilo says:

    @James Pearce:

    I read that Target is spending $20 million to upgrade its stores with unisex bathrooms. They’ve been under boycott for their tolerant bathroom policies. Guess it didn’t work.

    If it didn’t work, then why is Target spending $20 million to add unisex bathrooms? Why isn’t the policy they announced in April to allow transpeople to use the bathroom of their choice sufficient?

    Btw, I’m a huge fan of unisex bathrooms. I have 7 yr old twins, a boy and a girl. It’s a total pain in the ass to take them to the bathroom when we’re in a store.

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  25. stonetools says:

    @Doug Mataconis:

    Congress is a dumpster fire. To force the issue, some people are going to have to jail about this, then, Doug. Are you OK with that?
    I’d just prefer that we skip all that and have a Supreme Court decision deciding this, and I think that’s how it will end up.

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  26. al-Ameda says:

    This “issue” is a pretty good measure of how dumbed-down we’ve become.

    Do we really want a female who’s transitioned to male to use a women’s restroom? And a male who has transitioned to female in a men’s restroom? Please.

    The whole commies-under-the-bed notion that men or women will pose as transgender in order to lurk in restrooms in order to molest children and adults is nothing more that cynical people making stuff up to scare others into bed-wetting .

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  27. Just 'nutha ig'rant cracker says:

    @Gavrilo: Umm… I think you’ve got it backwards (not that unusual, really). The boycott was to get them to not change over to unisex bathrooms, IIRC.

    I agree with you on unisex bathrooms, BTW. The privacy is nice.

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  28. @stonetools:

    I’d just prefer that we skip all that and have a Supreme Court decision deciding this, and I think that’s how it will end up.

    And hopefully the Supreme Court will decide that unelected bureaucrats don’t have the authority to make new law, because a decision to the contrary would undermine fundamental Constitutional values regarding representative democracy.

    There are two different issues here. One has to do with transgender rights, the other has to do with the more fundamental issue of how laws are made. The Constitution is fairly clear on the second issue.

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  29. Gustopher says:

    it’s clear that when Congress passed these laws more than forty years ago it was fairly clear that they didn’t even consider the issue of whether or not the bars on discrimination based on sex or gender even applied to someone who identified as transgender.

    And, when the 14th Amendment was written, no one considered that it would be used as the basis of a decision supporting same sex marriage.

    The question isn’t what the legislators intended, it’s what the legislators wrote and how that fits with the fundamental American values of Liberty. Forty years ago, our understanding of gender was binary and we have since begun to understand that it is spectrum with a bimodal distribution. We attempt to apply the old language of the law, and err on the side of increasing liberty for individuals.

    Either we lock ourselves into the science of the times of the writers of laws, or we move on and apply the laws to our current reality. Our understanding of gender has advanced in the past 40 years much as our development of guns has advanced. Transgender kids get to use the bathroom that matches their gender, and the second amendment doesn’t just refer to muskets. Or the government determines kids’ gender, and can restrict weapons that are not breach loaded.

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  30. SKI says:

    @Doug Mataconis:

    . In this case, I’ve found the legal arguments that the DoE/DoJ make here to be rather dubious given the fact that it’s rather apparent that Congress did not intend the laws barring discrimination based on gender to apply to the concept of gender identity, which is something that most people don’t understand

    Justice Scalia, speaking from the grave, would like to have a word: ” We’re not governed by the drafter’s intent. We’re governed by laws.”

    On a more serious note, if Price Waterhouse is still good law (and it is), then Title VII unambiguously applies to gender and gender stereotypes, not mere anatomy.

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  31. @SKI:

    And nothing in either Title VII or Title IX can reasonably be interpreted as applying to transgeder students in public schools

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  32. SKI says:

    @Doug Mataconis:

    And nothing in either Title VII or Title IX can reasonably be interpreted as applying to transgeder students in public schools

    Hand waving away the argument, are we?

    Let’s see where the argument fails so much that no one who is “reasonable” can believe it?

    We all agree that it is illegal to discriminate on the basis of sex, right?

    SCOTUS has established that it is not merely sex (anatomy) but gender and gender stereotypes that are protected classes under Title VII – PriceWaterHouse.

    Ergo, schools can’t discriminate on the basis that a person doesn’t match their perception of what is a “normal” gender identity.

    What exactly about the above isn’t “reasonable”?

    Today, we understand, based on medicine and science, that there are humans walking among us who identify as a sexual identity that isn’t typical for their born anatomy and that they do so unshakably from a very early age. See, e.g., this study or this summary. Note that we also know that there are humans who are born with sexual organs from both sex and/or have non-typical chromosomal makeup. AKA, life isn’t binary.

    I suggest you take a good and long pause and think about where your resistance is coming from – because it isn’t reason.

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  33. stonetools says:

    @Doug Mataconis:

    Well, Doug I don’t think there is anything in the First Amendment that can reasonably interpreted as applying to campaign contributions or in the Second Amendment as protecting an individual’s desire to use certain firearms in self defense, but you seem OK with those stretches.
    We will see what happens when Scalia’s replacement is seated.

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  34. Gavrilo says:

    @Just ‘nutha ig’rant cracker:

    Um, No! You don’t remember correctly. Back in April, Target announced that its policy is to allow “transgender team members and guests to use the restroom or fitting room facility that corresponds with their gender identity.” There was nothing in Target’s statement about unisex bathrooms. That announcement didn’t come until a few days ago.

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  35. john430 says:

    Tell me where we have one hundred percent freedom in anything? How do we enact a law for unbelievably small groups of people? What are the numbers of transgender people? How many kids in a school district are transgender? Probably something like .00003 Is it worth it?

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  36. the Q says:

    Let me make my position clear…stop conflating an adult TG with an 8 year old “TG”. It proves how ridiculously stupid your comments are. A court case in Maine was litigated over a 5th grader who used the “wrong” bathroom, so the school let her use the faculty restroom instead for privacy. Of course a law suit was filed claiming her civil rights were denied because she couldn’t use the “men’s room”. She’s freaking 9 years old. So a common sense solution is now literally a federal case. So for all of you Pollyannas who think “just have a unisex bathroom anyone can use and we’re fine” are just ignorant and naive. You will be sued if you deprive a TG of going into a mens or ladies room of their choice. AND THESE ARE KIDS which this lawsuit pertains to.

    Again, lets bifurcate the adult TG and their biasedreality vs 8 and 9 year olds crusading to use any bathroom in ELEMENTARY school.

    I have no problem with adult TG getting bathrooms in Walmarts, gas stations, etc or any legislation banning discrimination and giving them full rights.

    But you boomer liberals are crazy. We have the Justice Department threatening to withhold all federal funds from school districts who don’t follow their dictate on TGs?

    This nuclear bomb approach works when A.) 90 million women are affected by Title 9. B.) Jim crow laws in the south C.) Northern school districts de jure segregation…

    All worthy causes.

    But TG???????? We are going to the mats over literally an infinitesimal percentage of the population.

    So, lets say in a town of 50,000 you have 20 bicyclists, but the town decides that those bikers should have one lane of a two lane highway all to themselves, thus causing gridlock for the 99.2%.

    Is this a good solution? Might there be another?

    My point is the U.S. gov’t is going to cause massive dislocation by withholding federal funds over THIS ISSUE?

    While it is important and we should do what we can to stamp out discrimination, its amazing you all can’t step back and see the total overkill reaction by the Obama folks.

    In short, boomer liberalism at its worse.

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  37. @SKI:

    What exactly about the above isn’t “reasonable”?

    The fact that expansion of the definition of gender that this implies wasn’t within the intent of Congress when the relevant laws were passed.

    I’m not saying that this should not be the law. I am saying that un-elected bureaucrats are not the appropriate persons to decide whether or not this is covered by the relevant statutes.

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  38. Neil Hudelson says:

    @Loviatar:

    Hey guys, stop picking on the Republicans. They’re only a little misguided, I’ve been told they’re really good people.

    What you’ve been told is that only an incredibly naive fool would try to distill the myriad competing interests that compel roughly 60 million people who will vote for the GOP into a binary “good vs. evil.”

    What you’ve been told is that only a complete and utter simpleton would write screed after screed about “choices” but would have blinders to all the various choices that make up a vote other than a facile “American or unAmerican,” Especially when it can be surmised this particular fool was probably up in arms over the various “real America” statements and other attempts by the GOP to paint anyone on the left as an un-American “other” (and by extrapolation, evil).

    Good to see you are doubling down.

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  39. Steve Verdon says:

    @Slugger: Agreed.

    Lets just look at the incident rates….

    Suppose that being transgender occurs in 0.000033 or 1 in 30,000 people (this is for males). The incidence rate for pedophilia is not know, but it is believed to be below 0.05 in males, so lets say 0.025 or 1 in 40. These are the worst case numbers, by the way. Transgenderism in females is even more rare, 1 in 100,000 and pedophilia among women is believed to be even lower. With these numbers the incidence of a transgender pedophile is 1 in 1.2 million.

    If you are worried about your child running into a transgendered pedophile at his high school you should be equally worried about them coming into contact with somebody afflicted with the ebola virus.

    If you are worried about the ebola virus, stop worrying about this mythical transgendered pedophile.

    This notion of the transgendered pedophile are simply disgusting attempts by ignorant people to create an environment of fear to justify their ignorance and bigotry. Nothing more.

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  40. Steve Verdon says:

    @the Q:

    The problem for you is that people who are transgendered state they have known from a very early age that they are transgendered. And correctly identifying and helping such people can really make a huge difference. Part of that help is that you start the transition process early rather than later. And yeah, children as young as 11.

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  41. Steve Verdon says:

    Derp…

    That sentence should read,

    If you are NOT worried about the ebola virus, stop worrying about this mythical transgendered pedophile.

    Typing too fast….

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  42. michael reynolds says:

    @the Q:

    The current estimate is that there are roughly 700,000 trans people in the US. Small percentage, still a bunch of people.

    This is not an issue solely of identity, it’s an issue of safety for those 700,000. See, while you’re freaking out about mythical 5th grader trans lawsuits, actual trans folk are being actually beaten up and actually murdered.

    A trans woman who is required to use a male bathroom is in far greater danger, than the cis-woman who has a trans female in the next stall. The danger is posed by cis-males. You know, like me and you. We are the problem. If we could, say, not beat the shit out of a trans person in our sacred potty space, this would be far less urgent.

    One of the ways we raise young males to not feel the need to beat up trans people is by integrating the concept of transgender earlier. I have a kid in high school and one in college and gender fluidity shocks them not even a little bit. School has changed. In the civilized parts of the country this is effectively a non-issue. No one cares what toilet trans people use. Because while in one’s fevered imagination one can summon visions of all-girl showers being leered at by horny boys pretending to be girls, that’s really more of a 1980’s soft-core porn thing than it is reality. Reality is somewhat more mature.

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  43. michael reynolds says:

    In point of fact, by the way, a male-to-female trans person is almost certainly on hormones which all-but eliminate testosterone while jacking up estrogen. Males minus testosterone are not what you’d call likely sexual predators. It’s the ones with testosterone that are the problem.

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  44. grumpy realist says:

    @SKI: There’s a difference between people who actually are transgendered and people who pretend they’re transgendered. That’s what the hissy-fit is all about.

    If you see what people are blowing up about, it isn’t worries about transgendered people that are producing the ruckus. It’s the number of, well, “fake positives”.

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  45. Gustopher says:

    @the Q:

    So a common sense solution is now literally a federal case.

    Whenever people start talking about common sense solutions, I assume they haven’t thought through all the implications of their solutions.

    Sending transgender kids off to separate bathrooms for freaks, for instance, sounds like a fine solution, but it ostracizes the children and makes it appropriate for everyone to treat them like freaks. Also, we tried “separate but equal” in our history, and it didn’t work out so well.

    Let me make my position clear…stop conflating an adult TG with an 8 year old “TG”. It proves how ridiculously stupid your comments are.

    For instance, here, where you believe that just because you liked to try on your mother’s dresses when you were 8, that means that no one is clear about their gender identity. This goes against pretty much everything every transgender person says, where they knew from an early age.

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  46. Gustopher says:

    @Doug Mataconis:

    The fact that expansion of the definition of gender that this implies wasn’t within the intent of Congress when the relevant laws were passed.

    So, minorities should have to have their rights specifically enumerated, for each minority?

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  47. @Gustopher:

    When there’s no evidence that the word “gender” was ever intended to include the concept of “gender identity,” and given the implications that has particularly in the context of public schools, I don’t think it’s appropriate for unelected bureaucrats to be modifying the law beyond where Congress intended.

    Personally, I have no problem with the accommodations that are being talked about in the context of public buildings and such. But, for me at least, that’s different from the far more important question of who gets to say what the law is.

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  48. Steve Verdon says:

    @michael reynolds:

    Not only that, but transmen would be in the women’s bathroom as well…and they tend to look like dudes.

    I have no problem seeing some troglodytic father freaking seeing a transman obeying the law and following his precious princess into the ladies room and starting a fight. And these days that could lead to somebody getting killed once the cops show up.

    Funny thing is 5 years ago, nobody gave a crap about this. And guess what there were trans people around then too. The supposed issue of trans people doing bad things in bathrooms has never been an issue, it is a completely bogus issue.

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  49. SKI says:

    @Doug Mataconis:

    The fact that expansion of the definition of gender that this implies wasn’t within the intent of Congress when the relevant laws were passed.

    So Scalia’s view of intent vs language was per se unreasonable? Really?

    Intent doesn’t matter when the statute is unambiguous. And SCOTUS already stated that it includes gender. So the question is what is involved with gender? And we know far more about that today than we did decades ago.

    Pollution laws don’t need to be rewritten if we discover that Chemical X is a pollutant – even if the lawmakers at the time didn’t think Chemical X was covered because they didn’t know it was a pollutant. That would be unreasonable. All that needs to happen is the regs are updated to include Chemical X. That happens all the freaking time. So what is different here?

    What makes this regs update based on new knowledge and understanding unreasonable?

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  50. SKI says:

    @Doug Mataconis:

    When there’s no evidence that the word “gender” was ever intended to include the concept of “gender identity,” and given the implications that has particularly in the context of public schools, I don’t think it’s appropriate for unelected bureaucrats to be modifying the law beyond where Congress intended.

    Personally, I have no problem with the accommodations that are being talked about in the context of public buildings and such. But, for me at least, that’s different from the far more important question of who gets to say what the law is.

    I could be snarky and point out that there was no intent to have citizen include women of people of color but…

    I could also point out that your policy preference doesn’t make the opposing view unreasonable…

    But I’ll contain myself 😉 to pointing out that there is a clear remedy to Congress disagreeing with that discrimination on the basis of sex doesn’t include gender identity or norms – which they haven’t taken since 1989(!) when this standard was enunciated by SCOTUS.

    Once you agree that protection includes gender identity and norms (and I don’t see how you deny this given the more than 25 years or jurisprudence without a reaction from Congress) the only issue is factual: Is being transgender a gender identity? I don’t see how you can escape that reality – or call it unreasonable to state that it is.

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  51. Tyrell says:

    @Steve Verdon: “nobody gave a crap”: indeed true, but I would say in this context the correct term should be “gave a crapper” when talking about restrooms. I used to work in the commercial building construction industry and I got to work in and see a ton of public restrooms from start to finish: laying the drain pipes to cleaning the fixtures for the final inspection. I can tell you just about anything you want to know about restrooms. Today I often catch myself walking around in a restrooom checking for leaks and tightening something up. Five years ago, as you say, bathrooms were not an issue. People took for granted that the water ran, the sinks drained, and the toilets flushed. Where it all went was not a topic of discussion. One major point that people are in total denial: most women absolutely do not want to use the toilet after a man, for obvious reasons. Another fact: most of the trash and filth in these restrooms is the fault of the customers: people could be a lot cleaner. So everyone keep that in mind before you go off on the restroom at a fast food joint, a convenience store, or a service station.
    “This restroom inspected by Peabody and Plushbottoms engineers”

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  52. the Q says:

    Ok. again, all for TG rights as adults and sympathy for misunderstood 8 yr olds TGs.

    But who breaks a butterfly on a wheel?

    The Justice Dept threatens to withold federal funding to whole school districts over this issue. Can you imagine the impact this has on the 99.5% of the other students?

    Do they withhold funds from schools which do not graduate literates? No. Do they withhold funding from schools which fudge attendance records? No. Do they withhold funds from school districts which hide child molesters? No.

    But over this issue its the death penalty? Not one of you will admit this.

    Its like obsessing over a hangnail when you have pancreatic cancer. It shows me just how obtuse the priorities are in the modern Dem party.

    Lets invade Syria then, to correct the wrongs there. Who cares if thousands die and we spend another trilion. Syria must be saved.

    TG third graders. Lets go to war over that issue and not about a hundred more pressing issues.

    Thats my point.

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  53. Gustopher says:

    @the Q:

    The Justice Dept threatens to withold federal funding to whole school districts over this issue.

    Why coddle bigots?

    Immediately after the marriage equality ruling, certain Republicans — either cynically, or just malevolently — began looking for a new scapegoat, and settled on transgender people. This rule by the Obama administration was meant as a shot across the bow of bigots, and a signal that the administration would fight that. So, yes, the penalties are harsh.

    I don’t know about most people, but I am tired of these cynical appeals to bigotry and fear. I have no use for those people, and wish them nothing but misery. Let the bigots pay more in taxes to keep their schools open.

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  54. Gustopher says:

    @Loviatar:

    Hey guys, stop picking on the Republicans. They’re only a little misguided, I’ve been told they’re really good people.

    Some are good, some are not so good, like any other group. Your entire argument seems to be “they’re either with us or against us” when reality is a lot more complicated.

    The bigot wing of American politics votes Republican these days, by and large. But a lot of other people do too, and they aren’t evil, or wrong, or even necessarily misguided — they just prioritize their values differently.

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  55. Tyrell says:

    @Gustopher: The idea that the federal government can tell state and local agencies such as the local school houses how to run their restrooms is preposterous. The school board members here are not going for it. They know that parents by the hundreds would pull their kids out and home school them or put them in private schools. The school system would have to cut teaching and other positions because of the losses. The federal government needs to stay out of the class room and quit this “gender nuetral” social re-engineering foolishness.. The people are standing up. And it is not some kind of “bigotry”.

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  56. SKI says:

    Wanted to chime back in to try to set a baseline fact that seems to be missed:

    A M-F Transgender woman is a woman. So to a F-M transgendered man is a man.

    Put another way, Biology isn’t Gender.

    This concept is both accepted medical and scientific reality and vigorously denied by those who oppose treating transgendered people in accordance with their actual gender.

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  57. SKI says:

    @Tyrell:

    The idea that the federal government can tell state and local agencies such as the local school houses how to run their restrooms is preposterous.

    Except that isn’t what they are doing.

    The Feds are advising everyone that you can’t discriminate on the basis of gender. Period.

    You can run your bathrooms however you want as long as it doesn’t discriminate. You can’t refuse to allow a man from using the men’s bathroom or a woman from using the woman’s because you don’t believe that they are actually a man or woman.

    This is no different than the 1960’s and the feds telling local schools not to discriminate by race.

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  58. James Pearce says:

    @Gavrilo:

    If it didn’t work, then why is Target spending $20 million to add unisex bathrooms?

    If it worked, Target would be bleeding money, saying, “Alright, alright, mercy, mercy!”

    As it is, they’re spending a lot of money to make facility improvements, not to mollify the complainers, but to accommodate the people they’re complaining about.

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  59. the Q says:

    SKI.

    So we are conflating a fifth grade “TGs” rights with the Edmund Pettus bridge, Selma, Jim Crow and the Voting Rights Act????????????????

    Boomer libs have definitely as you would say “jumped the shark”.

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  60. michael reynolds says:

    @the Q:

    I don’t understand why you keep trying to lay this off on “Boomer liberals.” This is coming from a much younger demographic group. We boomers aren’t leading, we’re just not getting in the way.

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  61. SKI says:

    @the Q:

    So we are conflating a fifth grade “TGs” rights with the Edmund Pettus bridge, Selma, Jim Crow and the Voting Rights Act????????????????

    1st, Are you suggesting that a 5th grader who is TG has less worth as a person than a 5th grader who is African-American????????? Human rights are human rights. Treat everyone fairly and equitably.

    2nd, I’m not sure whether your question is a weak attempt to change the context of my statement (ooh, squirrell!!!) or you simply are ignorant and not following the conversation. The Civil Rights law at issue is the same in both situations. From a legal matter, and that is what Doug and I, both lawyers, were talking about, the law is the law is the law. The issue is whether the old standard (sexual orientation isn’t a protected class, only gender identity – aka you can fire someone for being gay but not for being characteristically gay) is good law or whether the EEOC’s interpretation, which I would suggest is in line with Justice Scalia’s majority opinion in Oncale, is correct.

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  62. SKI says:

    Oh, and @Doug Mataconis: , I think Scalia neatly filleted your “well they didn’t mean to protect them when they drafted the legislation” take in Oncale:

    We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

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  63. grumpy realist says:

    Doug, did you see this?

    I had to guffaw.

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  64. Gavrilo says:

    @James Pearce:

    Obviously, you’re not paying attention. Target is bleeding money. Sales have dropped significantly and the stock has plummeted. Target claims it’s unrelated to the boycott, but they’re bleeding money just the same.

    Again, Target could have come out in April and said “Hey, we’re going to invest in unisex bathrooms so that our trans customers don’t feel weird about using a bathroom that doesn’t correspond to their gender identity.” They didn’t. They said the transpeople could just use whichever bathroom they want to. They didn’t announce the investment in unisex bathrooms until a few days ago.

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  65. the Q says:

    SKI, again you are entirely missing the point as usual.

    You make a ridiculous analogy that somehow we should take an 8 yr old TG’s “civil rights” as seriously as we did 350 years of slavery and 110 years of Jim Crow, 1500 lynchings, separate but equal that affected tens of millions, caused a Civil War and conflate that with literally a few thousand kids who want to piss in the bathroom of their choice in elementary school??????

    On this point, you’re a total buffoon. I’ve stated a hundred times that I completely support the rights of TG to have full equality and support any campaign that ends bias against adults.

    But to go the extreme lengths of pulling federal support is ridiculous overkill especially in an election year. My school district Los Angeles Unified, had less than 20% of their students pass the standardized English test. Why don’t the Feds pull the federal funding for such an abysmal success rate?

    Instead this esoteric issue will get a district the death penalty?

    Again, it just shows how the Dem libs will go to war over this picayune issue while Epi Pens go up 600% and no Dem lawmaker wants to ruffle the feathers of the father Senators.

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  66. Grewgills says:

    @the Q:

    On this point, you’re a total buffoon. I’ve stated a hundred times that I completely support the rights of TG to have full equality and support any campaign that ends bias against adults.

    Why do you explicitly only support ending state sanctioned bias against adults? Why are children less deserving of equal treatment?

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  67. James Pearce says:

    @Gavrilo:

    Sales have dropped significantly and the stock has plummeted.

    2nd quarters earnings fell almost 10% and they project sales to be down by 2% for the remainder of the year.

    Their stock has been steady.

    None of that has anything to do with the bathroom issue. The $20 million dollar investment in unisex bathrooms serves its customers. Not the boycotters.

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  68. Gustopher says:

    @the Q:

    Instead this esoteric issue will get a district the death penalty?

    It’s not esoteric if you know anyone who is transgender, or anyone who has a kid who is transgender. It’s not even esoteric if you know someone who is gay and are able to make the tiniest jumps using your innate qualities of empathy.

    Cutting funding is the tool that the federal government has. It is what makes it clear that they will fight, tooth and nail, to prevent states and local school districts governed by backwoods inbred bigots from demonizing children.

    So, screw you and your “esoteric issues”. Screw you and your defense of the backwoods inbred bigots. Screw you and your “It’s just a bunch of transgender kids, they aren’t worth the bother.”

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  69. Tyrell says:

    @James Pearce: Most retailers are in decline and reducing stores or leaving altogether. Recently it has been Sears, KMart, and Macy’s. In the past two years it has been Aeropostale, Hollisters, and Tadio Shack (my favorite). I know that some of this is due to internet sales. But there seems to be something else going on here.
    Sears: we thought that company would be around forever. What about Craftsman tools ? How are we going to get them ?

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  70. Matt says:

    @Tyrell: Well Crafstman tools have been on a serious decline in quality for years now so it’s not really relevant. The once great warranty has been whittled down to only include some of their hand tools like the wrenches sockets etc.

    Personally if I need a tool that I might use a few more times I just pick one up at harbor freight. Yeah the tools are made out of chinesium but if you choose carefully you’ll find that they can stand up to some abuse over the years. The prices being so low to make it cost effective even when buying replacements in the future.

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