Today in the New York Times, Yale Law emeritus professor Peter H. Schuck takes a constitutionalist’s approach to the bathroom controversy currently choking out the Republican party, which is to say that Schuck wonders if the federal government should really give trans men and women the right to piss where they please without first canvassing the entire United States of America.
Schuck takes issue with the Obama administration’s decision to send a letter to every public school in the country urging them to allow trans students to use any bathroom on campus under provisions outlined by Title IX. Schuck writes:
Normally, under the venerable Administrative Procedure Act, a rule change like this requires the government to invite the public to join the specific policy conversation before any rule is issued, by publishing the proposed policy, explaining its rationale, soliciting public comments on it and seriously considering those comments before deciding on a rule. If a rule is adopted, opponents may then challenge it in court based on this administrative record. Instead, by using what’s called a Dear Colleague letter, the administration hopes to sidestep that requirement.
The administration has ignored the notice-and-comment process for other controversial rules — on campus sexual harassment, and on the legal status of millions of undocumented immigrants (which is before the Supreme Court), for example. By ignoring it in this case, it has aborted a much-needed public debate over whether identity-based bathroom use can and should be regulated as a legal right, or merely left as an option.
Schuck imagines said debate going something like this:
Here are just a few questions that people might have asked before making up their minds. How uncomfortable are people with the prospect of those with different anatomies sharing their bathrooms? Is this discomfort likely to grow or decline? Since gender identity cannot be confirmed before entering bathrooms, how great is the risk of voyeurism or other abuses? How costly will it be to provide gender-neutral bathrooms, and how would people of all genders feel about such alternatives? Will market pressures such as the boycotts against North Carolina’s bathroom regulation produce a better mix of solutions than the government’s one size fits all?
And how many transgender people actually experience indignity when using traditional bathrooms, and what is the nature of this indignity? Discomfort about using a urinal when men at nearby urinals think one is a woman? Annoyance at having to wait for a stall to conceal one’s anatomy?
You could go on forever. What if a trans person brings a parrot into the bathroom? What if the free market decides trans people must land a triple axel before flushing? Unfortunately for the conflicted centrists among us, nothing would ever get done in America if the government had to account for every hypothetical question imaginable. The Obama administration sees one’s choice of bathroom as a basic right that requires no further debate.
The administration is correct, and they have our past on their side. Not that Yale emeritus professor Peter H. Schuck seems to remember America spending decades violently hashing out rules governing the use of public facilities much to the embarrassment of every sane citizen of this nation (emphasis mine):
Relatively few Americans considered bathroom access a civil rights issue until last week. They deserve to hear the arguments pro and con before making up their own minds. Much remains to be said and learned about the issue; truncating this conversation just as it is beginning is wrong (and arguably violates the Administrative Procedure Act).