In his speech at the Democratic National Convention, Khizr Khan, the father of a fallen American Muslim soldier, held up a pocket-sized copy of the U.S. Constitution and rhetorically asked Donald Trump, “Have you even read the United States Constitution?”
It’s a good question — for all Americans. Those who read it will find nothing giving the federal government the authority to impose a national bathroom policy.
In fact, as readers reach the end of the Bill of Rights, they will discover the 10th Amendment, which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, when Charlotte, N.C., created a bathroom law requiring city building managers to allow people to use the public bathroom matching the gender they identify with, the state government stepped in and overrode it. Whether it should have or not is a different issue. It did.
So why does the Obama administration’s Justice Department think it has the power to micromanage bathrooms? It points to the 1964 Civil Rights Act, along with the Education Amendments of 1972, which outlawed discrimination based on race, color, sex or national origin — referring to the sex you are, not claim to be — which would accommodate those who have had sex reassignment operations.
In 2014, the Department of Education decided to extend that non-discrimination provision to “gender identity or failure to conform to stereotypical notions of masculinity and femininity” in cases of sexual violence at federally funded public schools. Few balked at that change, even if it improperly expanded the meaning of the actual law, because no one wants sexual violence or harassment.
But in 2015, the Education Department took a much bigger and more dubious step: It extended the non-discrimination provision to the use of bathrooms and locker room facilities. And it may be extended to dorm rooms, which means a person who self-identifies with the opposite sex could be cohabitating with those classmates for months, not the few minutes it takes to use the restroom.
Bureaucrats decided to make law without congressional input or approval. To get states to comply with the bathroom mandate, the Justice Department is trying to bribe them with taxpayer-provided funds. If states want the federal money public schools depend on, then they must conform to the federal government’s demands.
The Congressional Research Service says the federal government returned an estimated $628 billion in grants and aid to state and local governments in 2015 — with perhaps $80 billion of that slated for education.
So Washington returns some to your tax money to your state, but only it and public schools do what Washington bureaucrats claim to be the law.
Oregon willingly adopted a transgender bathroom policy in May, and other states may follow. But 13 states, including Kentucky, have sued the Obama administration over this issue, claiming it has overreached its authority, and a federal judge recently sided with those states. However, another federal judge has blocked North Carolina’s efforts to prohibit such use.
People who want to move faster may applaud federal agencies’ efforts to bypass Congress and impose their will. But those who gleefully support such power-grabs should remember that any government powerful enough to create new rights is powerful enough to take away all rights.
Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas.