Bathroom advice

Should federal government ignore discrimination on the basis of gender identity?

Once again, the demagogues of the nation have demonstrated their desire to provoke a war against transgender people who represent, at most, about .3 percent of the U.S. population. Last week, they assailed the federal departments of education and justice for calling on schools to allow transgender people access to a bathroom matching their gender identity — while completely ignoring the legal precedents requiring the Obama administration take that action.

Apparently jealous of North Carolina and Mississippi for drawing national attention for their recent efforts to discriminate against the LGBT community, Texas has now stepped up its discriminatory game. Leading the charge is none other than Sen. Ted Cruz, the failed presidential candidate who on Saturday accused President Barack Obama of becoming the "bathroom police" and inviting "grown men" into the "little girls' bathroom." That was similar to the fiery rhetoric of Texas Lt. Gov. Dan Patrick who last week described the administration's transgender non-discrimination directive as "blackmail" and thinks the federal government should keep its "30 pieces of silver" in federal aid.

Of course, none of that is true. At the heart of this month's notification is a desire to protect transgender individuals from being threatened, harassed or otherwise discriminated against on the basis of sexual identity. In many cases, classmates are probably totally unaware that a student is transgender at all — nor do they need to know. The point of the recent notification was to make districts cognizant of emerging practices to be followed and make it easier to provide appropriate accommodations.

The Obama administration also has a duty to enforce Title IX prohibitions against discrimination on the basis of sex. A growing body of case law strongly suggests that the federal government not only has an obligation to recognize Title IX protections for transgender people but also those provided under Title VII of the Civil Rights Act of 1964 which similarly bans discrimination on the basis of sex (as well as race, color, national origin and religion).

Now, perhaps Senator Cruz wants to ignore those legal precedents and would rather see all young transgender individuals be publicly identified and humiliated. Perhaps he and others envision some kind of chromosome check at the bathroom door. But if that's not a form of sexual harassment, it's difficult to know what is. Indeed, it should come as no surprise that Attorney General Loretta Lynch sees parallels to banning transgender individuals from their corresponding bathrooms to the "white" and "colored" bathroom prohibitions of the past.

What's especially irksome about the attacks launched by Mr. Cruz and others is how they are going after a truly disenfranchised minority. Transgender individuals aren't attacking fellow bathroom goers in their stalls — or giving cover to sex offenders who want to play dress-up. Far more likely is the experience of people like Chrissy Lee Polis, the transgender woman beaten up at a Rosedale McDonald's five years ago for daring to seek entry into the women's restroom. Since then, Baltimore County and the state of Maryland have put in place laws to protect transgender individuals from discrimination. Has it caused an uptick of sexual assaults in public restrooms in the county or elsewhere? No, of course it has not.

Some, like Donald Trump, have also questioned whether the federal government needs to get involved in the issue at all since the transgender population is so small. But then what constitutes discrimination? Would it be fine to refuse housing to a transplanted native of the Pacific Island of Nauru since, after all, there are only about 13,000 of them in the world? When a group is small and powerless, isn't that when the federal government has the greatest obligation to guard against discrimination?

Left to their own devices, some states are bound to treat minorities badly. That's what North Carolina's House Bill 2 has already demonstrated. No doubt many school districts are unaware of the best practices needed to protect transgender individuals as well as the privacy rights of all students. If the federal government is not going to help disseminate that information, who is? Senator Cruz? This is a time for fair-minded leaders to stand up for what is right, not for those who would score cheap political points by vilifying a small group of people who have it tough enough already.

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