The Trump administration has made headlines, as it seems to do about once every 15 minutes (if my feed from CNN is accurate), by rescinding the Obama administration’s executive order on school bathroom policies. In a show of media groupthink so rare it is hard to discover more than one example per day of it, outlet after outlet bemoaned the fact that transgendered students had just lost a vital “protection.” One of them did, however, rather sheepishly admit that “The letter to schools will have no immediate effect, because the Obama policy was blocked by a federal court shortly after it was issued last May.” So a policy that was never put in place was “protecting” transgender students, and revoking that policy will leave them defenseless, as apparently merely suggesting the policy was some sort of super-shield against “hate.”
This is obviously merely another excuse for outlets that already despise Trump to despise him some more. But is there a sensible way to handle the issue at play here? There is: as Pat Buchanan pointed out, it is subsidiarity. Solutions to social problems should start with the individual and the local community, and should rise to higher levels of organization only when there is strong evidence of malfeasance at the lower level.
The reason to start at the local level is that it’s here where people meet face-to-face. They can actually form what the classical tradition of political thought, from Aristotle to Guicciardini, would have recognized as political communities, in which people who know each other personally engage in discussion about how to best order their common life. It is much easier to hate and demonize one’s political opponent when he lives a thousand miles away; when he lives across the street and owns the local gas station or teaches at the local school, one is too likely to confront his humanity on a daily basis to easily turn him into a devil.
And I suspect that, when dealt with at this level, reasonable compromises can be reached on most of these “gender issues.” If a biological man wants to dress up like a woman, or a woman wants to dress up like a man, it really does not concern most people. And if someone who “presents” as a woman, despite having a penis, goes quietly into a stall in the women’s bathroom, goes about his/her business, and leaves, most people will be happy to leave that person alone. When there are special situations, like an inter-sexed child who has trouble fitting in with their assigned locker room, the average person is happy to create accommodations to make the child comfortable. And this is especially true, again, at the local level, where the child is a real human being, rather than a symbol in a political struggle. As a general solution to such problems, creating more access to private bathroom and changing facilities, for whatever reason they are needed, be it a gender issue, a religious issue, or simple shyness, can go a long way. (And this need not entail expensive construction: many schools already have private faculty bathrooms, and these could be opened to students who request private facilities.)
But it was transgender activists who disrupted the possibility of achieving these local accommodations by bringing down the heavy hand of legislation and executive orders. In New York City, for instance, Mayor Bill de Blasio declared that “Access to bathrooms and other single-sex facilities is a fundamental human right that should not be restricted or denied to anyone.” Which is a fairly obvious self-contradiction, since if no one is denied access to a bathroom or changing area, surely it is no longer “single-sex”! The order de Blasio signed states:
Executive Order 16 requires all New York City agencies to ensure that City employees and members of the public have access to single-sex facilities, such as bathrooms and locker rooms in City buildings and areas, consistent with their gender identity or expression without being required to show identification, medical documentation, or any other form of proof or verification of gender.
In other words, it is now illegal to prevent anyone at all from using any public “single-sex” facility, just so long as they declare their “gender identity” is the same as the sex designated on the door. We don’t just have to accommodate a biological male who always presents as a female using the ladies’ room: a man who suddenly decides a stroll through the women’s shower at a public pool simply has to “self-identify” as a woman, and in New York, it is now illegal to prevent him from having a nice, long look around. Contrary to the repeated refrain of those advocating these laws, that “they have never created any problems,” they already have, and we can be certain that as the population of voyeurs, molesters, and rapists figures out the import of these new dictates, we will see more such cases.
What’s more, these activists never rise to their own challenge and provide evidence of any widespread problem that these laws are addressing. And that’s because these laws are not aimed at solving any existing problem of any serious magnitude. Rather, they are blows directed against the “reactionary” notion that “man and woman he created them,” that the existence of two, and not four or nine or seventeen, sexes is part of the essential nature of humankind. The ideological nature of these mandates is quite clear in the web page created to celebrate New York’s bathroom access order, which contains many generalities—such as that “New York City is the birthplace of the fight for LGBT rights”—and no mention whatsoever of specific, existing problems that the order is addressing.
And it was in response to a similar law, passed in Charlotte, that the North Carolina “bathroom bill” was passed. (By the way, the North Carolina policy permits people to “re-sex” themselves on their birth certificate so they can quietly go about their business in the restroom they wish to use.) Similarly, activists in Houston tried to pass a law in the same vein well before the recent Texas “bathroom bill” was introduced.
So it was the transgender activists who disrupted the status quo, blocking the ability of communities to work out reasonable solutions to these matters on their own. The bills so far passed in North Carolina and contemplated in Texas may be heavy-handed, but have no doubt, it is the activists who are forcing the situation here. These state-level bills arose when parents realized that what these activists were demanding was that any pervert whatsoever could wander into the locker room in which their teenage daughter was changing after swim practice and gain the “right” to watch her undress, simply by declaring “I feel like I am a woman.” In response to this attempt to protect their daughters, they are being told they are “bigots,” and that their state will be economically crushed by “caring” organizations like the NFL and NBA if they persist in trying to protect those girls.
(I hope my focus on biological men’s interest in women’s private areas is not deemed “sexist.” I think I am on empirically firm footing when I say the odds of a woman being raped by a man are astronomically higher than the reverse, and that there are far more male voyeurs than female voyeurs. I also hope it is not too “sexist” of me to note that, in this regard, women are far better behaved than men!)
The “gender diversity” activists often say that the advocates of bills such as those in North Carolina and Texas are trying to paint all transgendered people as sexual predators, but that is just about the opposite of the truth: orders like de Blasio’s specifically forbid any attempt to differentiate biological males who really do self-identify as women from perverts who realize that the mayor has created a handy way for them to gain access to their victims. That is what disturbs most backers of the counter-legislation. And of course, such a sane differentiation is much more easily made on the local level than it is with the broad brush of legislation.
As Buchanan sagely notes, embracing the principle of subsidiarity is now perhaps the only hope for holding the Union together. To convince my many progressive friends that this approach—adopting a respect for local preferences and not trying to economically crush localities that pass laws you don’t like—is their best bet right now, I might suggest that starting a civil war, when the other side owns the vast majority of the guns in the nation and has most of the police and military on its side, is probably not a winning proposition.
Gene Callahan has a Ph.D. in political theory from Cardiff University and is the author of Oakeshott on Rome and America.