By Michael LaBossiere
During the Obama administration, the nondiscrimination laws governing public education were interpreted as requiring schools to permit transgender students to choose which bathrooms they would use. In February of 2017, the Trump administration rescinded these protections.
Attorney General Jeff Sessions argued that the Obama directive was improper and arbitrary. As might be expected, he also advanced the classic states’ rights argument, contending that the directive was imposed “without due regard for the primary role of the states and local school districts in establishing educational policy.”
Education Secretary Betsy DeVos initially opposed Sessions in this matter, but Trump convinced her to agree. To her credit, she did issue a statement about the moral obligation of schools to protect students from discrimination and harassment. Following Sessions, she expressed the view that bathroom access is not a federal concern.
Rescinding these protections does not prevent state and local governments from passing their own laws that provide such protections. However, it does seem to free state and local governments to pass laws discriminating against transgender students—and this would seem to be the intent behind Sessions’ decision. This raises the moral issue of what matters are best left to state and local government and which should be of federal concern.
While Republicans typically claim to be for state and local control, they are no more consistent in this matter than Democrats are. Rather than having a consistent principle regarding state/local control versus federal control, the parties support state/local control when the state/local governments are doing what they want. When state/local governments are doing what they do not like, they oppose state/local control. To illustrate, Republicans are usually against local control when the local governments want to ban fracking, impose restrictions on gun rights, or provide sanctuary to illegal immigrants. Democrats are typically in favor of local control when local governments want to do those things. While such unprincipled inconsistency is the stuff of politics, the approach to disputes about control should be resolved in a principled manner and with the principles being applied consistently.
I find the general idea of state and local control appealing because there are good arguments supporting this view. One compelling reason is that state and local governments have a better understanding of state and local conditions and are thus likely to do a better job than the federal government. Another compelling reason is that state and local governments are under more direct control of the people affected, which seems more democratic than having the distant federal government impose its will. Because of these reasons, I favor a presumption of local control—that is, the federal government should defer to state and local control unless there are compelling reasons to impose federal authority. As an example, the federal government has a compelling reason to impose its authority in cases in which state or local governments are violating (or permitting the violation of these civil rights).
In the case of bathroom rights, the question at hand is whether the federal government has compelling reasons to impose its authority on state and local governments to ensure that transgender students can choose their bathrooms. The answer depends on two main factors. The first is whether transgender students have a right to choose their bathrooms. The other is what the state and local governments will do in regards to the bathroom choice issue.
If transgender students do have a right to choose their bathrooms and the state and local governments decide to respect this right, then there would be no compelling reason for the federal government to step in. After all, there would be no violation of rights to redress with federal action.
If transgender students do not have a right to choose their bathrooms, then it does not matter what the state and local governments do—there would be no violation of rights that would justify federal intervention.
One obvious way to counter my approach is to argue that the issue of whether transgender students should have the right to choose their bathrooms is not a federal issue. Rather, it is a matter that is to be settled at the state and local level. To use an analogy, while the Second Amendment is a constitutional right, state governments set concealed carry rights. Likewise, while students have a right to bathroom access in schools, it is up to state and local governments to set these rights. This approach does have some appeal and leads to the question of whether bathroom rights are more like gun rights (which are largely under state control) or civil rights (which are supposed to be defended by the federal government when state and local governments fail to do so). While I am inclined to regard bathroom rights as analogous to (or part of) civil rights, this will need to be addressed in another essay.