May 16, 2016
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Monday, May 16, 2016. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Obama Administration issues decree to US public schools demanding total obedience to moral revolution
One metric to watch very closely in terms of cultural and social change around us is how fast it takes for something to be considered absolutely unthinkable, then ludicrous, then improbable, and then possible, and then of course, actual. Just consider that sequence when it comes to the fact that in recent days, the Obama Administration, through its Departments of Justice and Education, has ruled that every single bathroom and facility of similar sort and every single public educational institution in America must now fully bend the knee to the transgender revolution. This is a stunning development, but it’s not all that shocking given the direction of this administration and the velocity of the change. We note the story is reported by Christi Parsons of the Los Angeles Times,
“The Obama administration is directing public schools across the country to let transgender students use bathrooms that match their gender identity, a move that will expand nationally the argument over North Carolina’s controversial bathroom law.”Show Full Transcript
As Parsons went on to explain,
“The letter going out Friday from officials of the Education and Justice departments sets out the agencies’ view of what schools need to do under current federal law to provide an environment for students free of discrimination.”
Now let’s retrace just the last several days. The state of North Carolina adopted legislation establishing that in public facilities, persons should use the bathroom assigned to their gender at birth. The outcry against this was immediate in terms of the elites in this country, and that included the Justice Department and the Department of Education. The Obama Administration made very clear its opposition to the North Carolina legislation, including the fact that the Education Department threatened to cut off federal funding to all public schools in North Carolina unless the state reversed the legislation.
On May 13, these two departments in the federal government, the Department of Justice and the Department of Education, released a joint letter known as a “Dear Colleague Letter.” These are very interesting letters. As a matter of fact, on the website of the federal government, you can find an entire collection of these “Dear Colleague Letters.” They are written addresses to colleagues who are in the business of education. That would include principals, school administrators, college and university presidents. In the letter, the heads of these two federal agencies write,
“Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students.”
They then go on to state,
“Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.”
Now let’s just pause at this point in the letter. That’s noncontroversial. That is indeed the demand of the law back in 1972, and that extends the logic of the 1964 Civil Rights Act. But then they go on to state,
“This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”
Now that is very controversial language, because there is no question that the education limits of 1972 and the Civil Rights Act of 1964 had nothing to do with the transgender issue at all. That wasn’t even on the agenda or the imagination of Congress at the time. But now the two departments “have determined that this letter is significant guidance.”
That means it comes with a hammer. The federal government is saying that by defining this as “significant guidance,” it is expected that all institutions are now served notice that there will be a contingency in terms of federal funding, depending on the advice of this letter. The letter also states,
“This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.”
At this point we have to cut through the bureaucratic doublespeak and understand that these two departments representing the Obama Administration are claiming that they are not adding to the law. That’s a very crucial argument because of course federal departments have no right to do so. What they are doing instead is claiming that when the Civil Rights Act of 1964 and the education amendments of 1972 were passed, even though the legislation clearly then had nothing to do with transgender identity, is to be interpreted as doing so now. That’s a really significant development, and it is one that has been championed by and advocated by feminist attorneys, including attorneys like Gillian Thomas of the American Civil Liberties Union, who yesterday in an article published in the Los Angeles Times suggested that the change in terms of the interpretation of the laws, in terms of the ‘64 and ‘72 laws, largely because of feminist advocates within the federal bureaucracy, most importantly, the EEOC—that is the Equal Employment Opportunity Commission—in a very candid sentence Thomas writes,
“Since 1964, ‘sex discrimination’ has come to mean far more than Title VII’s framers could have imagined.”
Now just imagine what’s admitted there. Here you have an open admission, almost as in boasting, in which it is claimed and acknowledged that what was intended to be sex discrimination when Congress passed the legislation is not what federal bureaucracies understand it to be now. Instead the federal government has expanded these definitions without any authorization from Congress, but it is not just the federal bureaucracies, it has also been the federal courts. Gillian Thomas, writing in a different op-ed piece, this time published in the New York Times in recent days, wrote that the controversy now,
“Misunderstands how legislative interpretation works, it also fails to grasp the historic complexities of Title VII’s sex provision. The provision has always been contested. Since we don’t know much about why Congress enacted it, we have to look at how courts have interpreted it over the years — and they have constantly expanded its meaning.”
Another stunning admission—here’s the direct claim that what has happened in the legislation is that the meaning of it has been expanded by the federal courts. So it has been expanded and redefined by federal bureaucracies. It has been expanded by the federal courts in a way that Congress could not have foreseen and certainly had not intended. That represents a danger to our entire constitutional order. At this point I need to go back to that “Dear Colleague Letter” as was handed down by the federal government just in recent days. I hold in my hands a copy of the letter, in it I read:
“The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.”
Once again, there is an entire moral revolution, a civilization effectively set on its head in terms of that bureaucratic expression. What’s it telling us? It’s telling us that all that is required to trigger the special protections indicated in this letter is that a student or the student’s parent or the students guardian must simply notify the school administration that the student will now—we insert the word now—assert a gender identity that differs from,
“Previous representations or records.”
Just to make the importance of this clear. Here’s the next sentence,
“Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”
This removes the entire issue entirely from anything that might be even defined loosely as objective into the entire realm of subjectivity. All it takes is for a student to announce to the school administration that that student intends to assert a different gender identity, and here we are told that the federal government declares, on the basis of what it claims to be a clear legislative authority, that the school must immediately conform to the student’s announcement. Here’s a similar sentence on the following page,
“Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.”
Once again, what we’re facing here is the dissolution of a civilization. You simply can’t have any kind of civilizational structure if you’re going to undermine it at the most basic level, in this case we’re looking at the public schools as one of the most important structures in American civic society and we’re looking at the fact that in both the public schools and in public education as higher education, we see the demand here by the Obama Administration that the moral revolution be received and enacted immediately in toto, simply on the basis of an announcement that might be made even by a single student.
The insanity of this federal directive also shows up on the next page, that is page 4, where in a section on housing and overnight accommodations the statement reads,
“Title IX allows a school to provide separate housing on the basis of sex.”
Now there the first sentence makes sense. But here’s the immediate following sentence,
“But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in a single-occupancy accommodations or to disclose personal information when not required of other students.”
How in the world can any school even actually live up to these expectations? This is not only a recipe for total chaos; it is an absolute assurance that chaos is the inevitable result. Just a matter of a few months ago, America was assured that the LGBT revolution, including the legalization of same-sex marriage and all that is included in this revolution, wouldn’t really change anything fundamental. It was just about a matter of fairness and inclusion. Now we are told less than a year after the Obergefell decision that schools must now join the moral revolution, even when it comes to bathrooms and changing areas, locker rooms and other facilities, and the absolute decree handed down by our federal government is clear in its complexity, but also its moral clarity. This is an absolute demand for total obedience to the moral revolution.
At this point I have to go back to where I began, in my book, We Cannot Be Silent, published just last year. I began by defining a moral revolution in the terms we are now experiencing it, citing Theo Hobson, a British thinker, who argues that a moral revolution can only take place when three conditions are met. The first condition is that something which had been condemned must be celebrated. You can see exactly how that has happened on the LGBT issues. The second condition is what had been celebrated must be condemned. That is the Christian moral tradition and its understanding of marriage and sexuality. And the third condition is the most frightening. It is that those who will not join the celebration must also then be condemned, and that’s exactly what we’re looking at here. It is also an abandonment of moral sanity.
For example, in an editorial published in the Charlotte Observer, an editorial criticizing the state of North Carolina for its legislation, the editors sought to criticize the North Carolina law by stating its intention, in these words,
“If everyone just goes to the restroom that corresponds with their genitalia, what’s discriminatory about that?”
Now we need to note that the editors of the paper were arguing that point in order to lampoon it. In other words, to them it’s ridiculous to argue that it’s nondiscriminatory simply to say that one should use the bathroom that corresponds to one’s anatomy. But here you see how postmodernism has so infected this culture that the Editorial Board of the Charlotte Observer makes this moral statement, a statement of moral clarity, only to criticize it, to make it a point of derision. The editors make their own view very clear when in the next sentence they write this,
“It is, essentially, a denial that a transgender person has claim to a different ‘gender identity,’ which is the same rejection that was made of gays’ and lesbians’ claim to ‘sexual orientation.’”
So there you have the absolute equivalence being drawn when we were told just a matter of a few months ago the argument wouldn’t of course go that far. Well, it’s gone that far. It’s gone right to the bathroom of your local public school. By the way, there is moralizing behind this, as the headline in the Los Angeles Times about this story announced,
“The Obama Administration tells schools to do the right thing on bathrooms for transgender students.”
Notice the words “right thing.” In other words, this is the new moralizing of a postmodern sexual morality. The “right thing” is simply to follow all the dictates of the moral revolutionaries, right down to this latest bureaucratic demand. But there’s another very interesting story on this that tells us that the moral revolution is facing some headwinds it did not expect. This week, Time magazine has come out with an article by Belinda Luscombe, in which she says that,
“Even in Liberal Communities, Transgender Bathroom Laws Worry Parents.”
This is a really interesting development, because it is entirely predictable. On issues like this and the moral revolution, even some of the moral revolutionaries can’t live with the policies that they at least say they support. As Luscombe writes,
“Girls from a swim team in New York City’s Upper West Side are too scared to use the women’s locker room at a Parks Department swimming pool. In March, a sign appeared noting that everyone has the right to use the restroom or locker room consistent with their ‘gender identity or gender expression.’ Around the same time, the girls, who range in age from about seven to 18, became concerned after they saw a “bearded individual” in the women’s changing room.”
In a very telling understatement, the author writes,
“Even in states that have had more progressive gender identity policies in place for a while, like New York, unforeseen headaches have arisen.”
Unforeseen headaches indeed. As this Time article makes clear, these liberal parents in New York City who say they support all of these gender inclusive and LGBT policies don’t actually want them when they apply to their own children, in particular their girls. The Time article writes,
“An employee at the center who spoke on condition of anonymity says the individual using the locker room appears to present as a man—wearing swim shorts or trunks to swim, with sideburns going down into a beard—which is partly what alarms the girls and their parents.”
Time goes on to say,
“Staff members have also been warned that asking individuals to prove their gender identity would be”—here’s the word you expect—“discriminatory.”
The workers said,
“Our hands are tied. We can’t say anything about it.”
Responding to the story, the New York City Parks Department said,
“NYC Parks has long followed the NYC Human Rights Law allowing transgender individuals to utilize our facilities in accordance to their self-identification.”
That quote came from Crystal Howard, a spokesperson for NYC Parks.
“Where there are disagreements, as in this instance, the department usually finds an alternative room, in this case the family change room.”
But here’s what we need to note, and this is what makes this story so interesting. The alternative facility, which in this case is a family bathroom and changing room, is not being designated for the person who has the beard showing up in a women’s restroom. It is rather for all the girls who are now uncomfortable using that facility. As Time magazine acknowledges, that means that 18 girls are now trying to use the alternative facility that is intended for one person, or at least for just parents with a child. This demonstrates the insanity of this kind of policy, and least Time magazine is candid enough to point out that even in those progressive areas, as they are here defined in terms of the LGBT revolution, a lot of parents who evidently think they’re supposed to support these laws and policies don’t support them when it comes to their own girls.
Furthermore, there’s another very important development on this that has to do with the federal government and its own inability to find policies in accord with what it says are its own interpretations of the law. In this case, the story isn’t about the Department of Education or the Justice Department, but about the Department of Defense. As Dan Lamothe reporting yesterday’s edition of the Washington Post, the Pentagon is finding it extremely difficult, if not impossible, to come up with the actual guidelines and policies for what it pledged would be the full inclusion of transgender persons in the U.S. Armed Forces,
“Officials say disagreements remain in the Defense Department about how to move forward, suggesting that the Pentagon isn’t close to wrapping up the review, let alone instituting any changes.”
Just a couple weeks ago the editorial board of the New York Times criticized the Pentagon for this very failure. Now the Washington Post goes into rather extended detail about what the Pentagon is facing as a challenge, and what we need to note is that in this article is a very candid admission that the Pentagon apparently has no clue how to live up to its pledge for the full inclusion of transgender persons in the US Armed Forces. And this article comes just two days after the Obama Administration handed down that directive to schools and colleges, indicating the policy the Obama Administration will now mandate for bathrooms. This article in the Washington Post also provides some really incredible insight into the challenges the Defense Department will face in terms of this policy and the moral confusion that it represents. Here’s one example. We have known for some time that the Pentagon has been trying to figure out how to allow transgender persons to be fully included when it comes to such things as policies about deployment and housing and even when it comes to uniforms, since in some branches of the armed services women wear skirts rather than pants, or at least it is an alternative. The question is, how in the world can those policies that are intended to provide standardization across the military, how can those policies be reformulated in order to embrace the LGBT revolution?
But this article very candidly points to something that hasn’t been acknowledged before, at least to my knowledge, and that is this: There are actually different physical requirements stipulated legally for men and women in terms of many branches and areas of deployment in the US armed services. How in the world do you fit the transgender revolution into that? If you have different categories of expectation for those who are identified as men and women, how do you then transfer those or adjust those when you have persons who are anatomically of one sex but are claiming a different gender? Here the moral illogic of the Obama Administration and its requirement that the federal government join the moral revolution, unconditionally and immediately, here you see where it runs right into the face of questions that will inevitably point out the insanity of the revolution itself.
One of the illustrations in this article in the Washington Post has to do with the variable standards when it comes to push-ups or pull-ups. Fewer are required for women. Well, does that not mean there have to be something like four different categories of standards of the numbers of push-ups and pull-ups that are necessary for men, for women, for transgender males, or for transgender females, if you buy into that logic? But this logic also says that there are persons at any point of transition that have to be recognized as they demand to be recognized. Now notice, that is exactly what is explicit in that “Dear Colleague Letter” addressed to schools by the Department of Education and Justice. Now you have the Department of Defense acknowledging in this article in the Washington Post that it really doesn’t have a clue how to extend this same logic in terms of its own operation.
Finally, however, the importance of this issue demands that we follow through to yet another article that appeared over the weekend in the Washington Post. This one by Laura Norén, and she argues that what we really need now, what the times demand, is a redefinition of bathroom. So after redefining marriage and redefining sex, redefining morality and redefining gender, we’re going to have to redefine bathroom. In one sense this was inevitable, and what she’s writing about is the fact that basically we should go to unisex bathrooms that have a combination of plumbing for both men and women, males and females, but are accessible by anyone under any condition all in the same general area with at least some concessions to privacy. I read right from her article when she writes,
“Urinals should remain in the mix — they save space and use less water than toilets — but they could be tucked away. Generally, separation should have less to do with sex than with function.”
Her article is far more comprehensive in terms of proposals, but it takes me back to that Time article that I cited earlier. I don’t think Americans are ready for this, or at least I hope they’re not ready for this. I don’t think Americans are ready for themselves and their children to go into unisex bathrooms where there is some concession to privacy, but where we are assured that it really won’t matter whether you’re a man or a woman or male or female, however you want to define those things anymore. All that will matter is that you find plumbing that’s convenient for you with some concession to some sort of privacy. As I say, I don’t think Americans are ready for that. But I have to watch myself, because after all, most of us would not have thought that the President of the United States last week would order that your local public school would have to allow biological males in the girl’s changing area and bathrooms. All bets are off.