Today’s Nondiscrimination Law is Tomorrow’s Big Government Leviathan

Even public sector nondiscrimination laws should be carefully considered and narrowly focused

Geno's

Township High School District 211 in suburban Chicago settled its ongoing dispute last week with the federal Department of Education (DoE) concerning a biologically male student who wants to use the girls’ changing room because he thinks he’s a she. Though the school district had already substantially indulged the boy’s delusions it was until recently insisting that the boy use a “privacy curtain” when disrobing, a compromise which the student and the federal government found unconscionable.

The recent agreement reached between the school district and the feds stipulates that “the school district will provide multiple changing areas with privacy curtains, for the student and any others who want privacy.” So now everyone gets a privacy curtain and it’s up to each student whether to use it.

It should come as no surprise that the student and the ACLU still aren’t happy with the resolution. Though the school district can now claim that it’s providing all the “girls”—both real and imagined—equal access to private changing areas, the transgender “girl’s” mere presence in the locker room has precipitated a policy change that falls short of full victory for transgender “rights.” Clearly, the school district is still treating him as a different kind of girl—which he is, of course. He’s a “girl” with a penis—a make-believe girl. “Girls” with penises tend to be treated differently than girls without them and that makes “girls” with penises feel marginalized. Boo hoo.

Just how did we reach this crescendo of madness? We “interpreted” ourselves here, of course! There is no law on the books that requires any school district to allow a boy access to the girls’ locker room no matter how he “identifies.” The Obama Administration has nonetheless conjured up a novel interpretation from an old and undeservedly venerated law to achieve his policy goal.

According to the New York Times: “In a letter sent Monday, the Office for Civil Rights of the Department of Education told the Palatine district that requiring a transgender student to use private changing and showering facilities was a violation of that student’s rights under Title IX, a federal law that bans sex discrimination.”

It’s hard to see how. Separate locker rooms are in and of themselves sex discriminatory—further proof that discrimination is not always bad and that we all do it every day. Unless it’s the DoEt’s position that male and female locker rooms should be integrated, they’re also supportive of sex discrimination. But that’s not their position, nor is it the student’s position or that of the ACLU. They support keeping boys out of the girls’ room but they insist that the student in question is a girl like any other and deserves to be treated as such. Anything less is a violation of “her” rights under Title IX, they argue.

Except it isn’t. Title IX was never intended to shield gender dysphoric people from reality. It addresses discrimination based on sex. Even today, “sex” is understood to be assigned at birth as either male or female, with “gender”—a much more fluid concept—being used to describe how one feels about that reality. The two words used to be synonymous though they have since diverged. Bruce Jenner, for example, belongs to the female gender (because he says so) but to the male sex (because his chromosomes say so.)

Title IX does not concern itself with “gender identity” or even “gender.” Its intention was to remedy sexism in educational institutions not “cisgender privilege” or some other silly buzz word. The elected representatives who wrote it and voted on it would not recognize this perversion of the legislation, and wouldn’t have passed it if they had known it would be “interpreted” this way.

Nondiscrimination laws lend themselves to this kind of abuse. As I have written in previous columns, I stand in opposition to all private sector nondiscrimination laws. Granted, the aforementioned locker room controversy is found completely within the realm of government so I will also add that even public sector nondiscrimination laws should be carefully considered, narrowly focused, and strictly adhered to. Bureaucrats should not be allowed to get away with creative (mis)interpretations that clearly depart from the spirit and the letter of the law.

The Civil Rights Act of 1964 offers an excellent example of a law that was twisted after its passage into something very different than what Americans were sold on. It sailed to victory over the stubborn objections of southern Democrats precisely because it was understood as government-enforced race neutrality, something most Americans assented to. In application it has been something else entirely.

As historian Dominic Sandbrook explained in his book “Mad as Hell”: “Hubert Humphrey, who steered the bill through the Senate, claimed that under no circumstances would it impose any kind of mandatory quotas. If anyone could find any evidence of quotas, he remarked, ‘I will start eating the pages one after another, because it is not there.’ But affirmative action was to prove a good example of the way in which laws can have completely different effects from those anticipated. To cut a very long story short, by the early 1970s there had been a radical change in the ethos of the Equal Employment Opportunity Commission (EEOC)… [S]oon the EEOC decided that the problem was not individual prejudice but entrenched discrimination, and started judging cases not by the employer’s intentions but by the end results. Even when the commission could not prove deliberate discrimination, it pushed for change, using hearings to embarrass companies into hiring more minority workers.”

Hubert Humphrey never ate a single page. To my knowledge, he has never apologized or even admitted that he was wrong. Only Barry Goldwater has apologized for his opposition to the bill; though he shouldn’t have because he was right. What a crap sandwich that thing is.

In the wrong person’s hands, nondiscrimination laws can be “interpreted” to mean almost anything. They nearly always become leviathans of big government—and probably not by accident.

A fine example can be found in the Justice Department’s 2012 directive to employers to hire felons or else! Discriminating on the basis of felony conviction is not illegal, of course, though the EEOC found that, under most circumstances, refusing to hire felons amounts to illegal race discrimination because felons are disproportionately black and Hispanic. No need to pass a new law, those laws already on the books can just be “reinterpreted” to the desired effect. If an employer can prove that he has a good reason not to hire felons he’s in the clear, though the government, not the employer, is the final arbiter. This policy was never voted on by our elected representatives because it would never pass if it were. It’s just another one of Eric Holder’s halfbaked ideas.

Another example—in 2006, the City of Philadelphia came down hard on Joey Vento, a second generation Italian-American and owner of Geno’s, one of the city’s landmark cheese steak shops, for placing a sign in the window reading “This is AMERICA: WHEN ORDERING ‘SPEAK ENGLISH.’” There was absolutely nothing illegal about this sign. Even private sector nondiscrimination laws, as unjust as they are, only force business owners to serve classes of people. Geno’s served anyone ordering in the English language. Yes, the reason Vento hung the sign is because the neighborhood had experienced an influx of Hispanic immigrants who didn’t have the common courtesy to learn the language of their host nation. Vento, however, would serve anyone who ordered in English and no one who ordered in a foreign language. Race was not a factor. City officials nonetheless accused him of racial discrimination and tried to use the city’s nondiscrimination code against him—a code that did not say what they wanted it to say and that was never intended to be used in the manner that they tried to use it. Mr. Vento didn’t back down and he eventually won his case though it took nearly two years and damaged his reputation as a businessman.

I could go on and on with examples but you get the point. Nondiscrimination laws are often applied any which way the powers-that-be decide to apply them and against whomever they dislike. The mere fact that one has not broken the law might make for a valid defense–but don’t bet the farm on it. It isn’t difficult for a scoundrel, acting in bad faith, to “reinterpret” them to mean virtually anything. And who’s to stop such a scoundrel? Only the voters, of course.

Benny Huang is a lonely conservative in the very liberal Pioneer Valley of Massachusetts. He strives to make the world a better place through his writing. He is a veteran.