By Greg Forster
The Obama administration is bullying the nation’s public schools into allowing students who claim they are transgender to use the bathroom and locker room facilities of the opposite sex. This should be an object lesson to naive education reformers who want greater federal power over schools in order to push higher standards. But it is also something much bigger—it is helping people see that a government school monopoly is unsustainable in a pluralistic society.
In May, the U.S. Department of Education issued “guidance” to the nation’s public schools, purporting to order them to allow any boy who says he’s a girl to use the girls’ facilities, and vice versa. Internet wags instantly dubbed the document “Commode Core,” in honor of the federal government’s earlier use of the Common Core initiative as cover to gain new power over standards, curriculum, and pedagogy nationwide. The expansion of federal power in the name of Common Core was already straining the traditional left/right political coalition for education reform; Commode Core will make those strains worse.
Don’t let the seemingly soft term “guidance” fool you. Guidance from federal cabinet departments carries a big stick. Federal officials are claiming that failure to comply would violate Title IX, a federal law prohibiting sex discrimination in schools.
That’s why 11 states (including Oklahoma) immediately filed suit against the new order. Title IX enforcement is no light matter. This issue is not going to go away when the media get bored and move on to the next circus act.
This was not Washington’s first, or last, foray into managing bathroom rights in the nation’s public schools. Before this, it had threatened to pull federal special-education funds from an Illinois school district unless it allowed a boy to use the girls’ room; when the district obeyed, 50 local families filed suit. A Virginia school board also had an earlier federal suit over a similar conflict, which it is now appealing to the U.S. Supreme Court. And in the short time since the new guidance was issued, the administration has already threatened to pull federal special-education funds from an Ohio school district unless it allows a boy into the girls’ room; the district is suing.
You may be wondering: There are very few students who genuinely suffer from what we used to call, until only the day before yesterday, “gender identity disorder.” Why not just find a separate bathroom they can use? In fact, that’s what some schools were already doing, granting students access to one-person facilities otherwise available only to faculty and staff. It’s simple and it gives everybody what they want, right?
Wrong. According to the guardians of the brave new gender world, being singled out to use a separate facility would inflict shame and guilt on the student. It would fail to affirm to them the authenticity of their chosen identity. Cooperation with students’ identity disorders is now mandatory. Afflicted students must be granted access to the existing student facilities of the opposite sex—where presumably their peers will not at all isolate them in a way that causes them to experience shame and guilt.
You know, it’s a strange world. I’m just barely old enough to remember when the guardians of the brave new gender world staked their whole agenda on the right to privacy. From abortion to no-fault divorce, it was all about privacy.
There doesn’t seem to be much concern about privacy these days, does there? The privacy rights of all the other students whose bathrooms are being invaded don’t seem to go for much.
But it would be a mistake to think about this conflict as only another skirmish in the culture war. It is that, of course. But it is also the latest, and possibly the most dramatic, demonstration of the conflict between America’s commitment to a pluralistic society and its policy of maintaining a government school monopoly.
Religious freedom and the broader commitment to social pluralism that it implies rest upon a belief that there are public moral commitments we share in common across cultural divisions. We all agree that murder, theft, and breaking promises are wrong. We all believe people should voluntarily help their neighbors and contribute to the well-being of the community. As George Washington put it in his famous letter to the Hebrew Congregation at Newport, equal membership in the American polity is extended to all those “who demean themselves as good citizens.”
The great beauty of this social model is its confidence in our shared humanity and our shared ownership of our nation and culture in spite of our differences. The great weakness is our tendency to assume that we share much more than we really do. For example, we all agree that murder is wrong, yet we struggle with persistent conflict over what that rule means when it is applied to abortion and bioethics.
It’s a big challenge when differences in cherished beliefs—about God, about sex, about anything—cause friction in the public institutions we share. The temptation is to think that my group is simply upholding the shared beliefs that all our public institutions are supposed to enforce, while the other group is demanding special rights for their own beliefs at everyone else’s expense. The problem with that, of course, is that the other side thinks the same in reverse, and there’s no easy way to settle the matter.
We see that in the federal bathroom debacle. One side appeals to privacy rights and public decency; the other side appeals to compassion and nondiscrimination. All four of these values have played an important role in American law, policy, and jurisprudence for a long time, yet no stable framework for understanding how they interact or how we resolve disputes over them has emerged. So each side sincerely believes it is merely upholding America’s longstanding shared public commitments, while the other side is demanding special rights for its side of the culture war.
Education is where our differences cause the most severe divisions. Schools do not merely aim to accomplish some specialized task, such as manufacturing cars or curing diseases, that raises only a limited set of divisive questions. The job of schools is to help parents rear their children, and that job raises all the divisive questions simultaneously!
Not only do many more conflicts arise in schools, they are much more intensely felt. The whole future life of each student is in the balance, so the stakes are very high. Also, children are extremely vulnerable and our instinct to protect them inflames passions on all sides.
Here is the good news. While education is the place where differences are hardest to bridge, it is also the place where a clear solution is readily available. A universal school choice policy would allow all parents to send their children to schools that reflected their own views, defusing the culture war. No less importantly, it would strengthen the bond between family and school in the job of forming children’s moral character—including teaching them the virtue of tolerance.
That’s probably the reason why a large body of empirical research finds that private schooling and school choice programs produce students who are more, not less, supportive of religious freedom and tolerant of the rights of those with whom they disagree. The government school monopoly weakens our American experiment in religious freedom. School choice would give it a greatly needed shot in the arm.
Greg Forster (Ph.D., Yale University) is a senior fellow with the Friedman Foundation for Educational Choice. He is the author of six books, including John Locke’s Politics of Moral Consensus (Cambridge University Press, 2005), and the co-editor of three books, including John Rawls and Christian Social Engagement: Justice as Unfairness. He has written numerous articles in peer-reviewed academic journals as well as in popular publications such as The Washington Post and the Chronicle of Higher Education.