Kentucky Gov. Matt Bevin recently became the 13th governor to join a lawsuit against the federal government over the administration’s general directive for public schools to provide equal access to transgender students based on their gender identity.
The governors insist that this directive is a federal infringement on a state and local issue. Fayette County, for instance, was accommodating transgender students before the directive was issued, according to a May 13 Herald-Leader article, so federal oversight is not necessary.
Regardless of the outcome of this lawsuit, the substance of the transgender directive, and its reinterpretation of Title IX, flouts the basic structure of law. Law has to be measurable. Murderers are not convicted on the feelings of juries. Environmental regulations on emissions are not measured by the intuition of inspectors. Convictions require evidence. Emissions are measured by instruments.
By contrast, the Obama administration’s new interpretation of Title IX demands that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”
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A transgender student is not required to show medical documentation of any kind in connection with this directive. The administration calls that type of requirement an invasion of privacy. The problem is that gender identity is entirely subjective, based only on the feelings of an individual. Sex is a biological trait that is measurable and clearly definable. It is also documentable.
This biological sexual trait was used as the justification for Title IX, a piece of legislation meant to address the rights of people who were biologically female and ensure that their treatment was equal to that of people who were biologically male. Without a hard and fast, bright-line distinction, this law loses its teeth.
The push to define crucial parts of law in terms of personal feelings, in direct contradiction to biological evidence, creates a slippery slope.
For instance, the Civil Rights Act prohibits discrimination on the basis of “race, color, religion, sex, or national origin.” However, what is to stop me, a white man from the United States, from identifying as a Native American from the Cherokee Nation?
At first blush this may seem harmless or even ridiculous, but what if I go back to college for a doctorate? In many states, Native Americans are eligible for scholarships or even full-tuition grants that are not open to other ethnic or racial groups.
Normally, the requirements for these scholarships include registry in a federally recognized tribe and a certificate showing that I have at least one-quarter Native American blood, but it could be argued quite convincingly that such a requirement is an invasion of my privacy, and that self-identifying as a Native American is all that can or should be required.
Furthermore, because transgender students cannot be excluded based on actions or attitudes “that [do] not conform to stereotypical notions of masculinity or femininity,” to force me to conform to stereotypical notions of what it means to be a Native American would therefore be an infringement on my rights, as stated in the Civil Rights Act. Therefore, I should be given the opportunity to go back to school for free.
Allowing people to define themselves under the law based only on their feelings may stem from a desire to be inclusive and welcoming, but the logical conclusion of such a practice is nonsensical, dangerous and plainly wrong.
If being biologically male is not enough to keep someone out of the women’s bathroom, then being evidentially guilty is not enough to keep someone in jail. Convicted felons can identify as innocent men, professionally unqualified applicants can identify as qualified and sexual predators can “identify” as whichever gender best serves their ends.
Any attempt to ask for documentation or point to evidence contradicting personal claims will see you labeled as a small-minded bigot, even if all you are really concerned with is privacy and safety.
Most importantly, I feel like I’m right.
John Roberts of Lexington is a University of Kentucky graduate student.