Ethics & Public Policy Center

The Bathroom Wars and the 2016 Presidential Election

Published in National Review Online on November 4, 2015



Yesterday’s sweeping defeat (61% to 39%) by Houston voters of an ordinance that (among other things) broadly banned discrimination based on “gender identity” starkly displays the potency of voter objections to laws requiring that men who think they’re women be allowed to invade women’s public restrooms. Indeed, a supporter of such bans complains that “bathroom concerns have dominated debates and derailed—or distracted—nondiscrimination policies the past year in Ohio, Florida, California, Arkansas, and Missouri.”

The bathroom wars—or, more expansively, the bathroom, locker room, and shower wars—might have an even bigger impact in next year’s elections, including in the presidential race. For all across the country the Obama administration is aggressively imposing its claim that existing laws prohibiting sex discrimination require that public school districts, as a condition of federal funding, allow boys who think they’re girls to use the public-school bathrooms, locker rooms and showers designated for girls. As a brief (see pp. 22-25) that the Obama administration filed last week in federal court makes clear, that claim rests critically on the Department of Education’s interpretation of its own regulations—regulations that the Department of Education, under the direction of a new president, would be free to revise or re-interpret.

Similarly, by a 3-2 vote—with, surprise, the three members in the majority all being Obama appointees—the Equal Employment Opportunity Commission ruled in April that an employer engages in discrimination on the basis of sex when it bars a man who thinks he’s a woman from using female restroom facilities. Further, the EEOC majority went out of its way in a footnote to make clear its view that the employer unlawfully deprived the man of the “use of common locker and shower facilities that non-transgender employees could use.” In other words, according to the EEOC majority, it’s unlawful sex discrimination for an employer to bar a man who thinks he’s a woman from sharing locker and shower facilities with women.

It’s worth emphasizing that the Obama administration’s transgender ideology won’t accept any sort of accommodations that fall short of providing self-identified transgender individuals with full and equal access to the opposing sex’s facilities. In the case in which the Obama administration filed the brief last week, for example, the public high school had initially made an existing separate restroom available to the student and then had installed three unisex single-stall restrooms that he (and others) could use. And in the EEOC case the employee had been allowed to use a single-user “executive” restroom.

So there’s plenty of room for a Republican presidential candidate to reject the Obama administration’s extremist ideology—an ideology that Hillary Clinton or any other Democratic candidate is sure to embrace—while also welcoming sensible and compassionate help for those who suffer from a transgender identity.

Edward Whelan is president of the Ethics and Public Policy Center.

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