Central to the conservative critique of revolutionary movements is Edmund Burke’s charge that they promote “armed doctrines,” ideological principles imposed without reference to longstanding practice, current realities or countervailing principles. These are promoted by ideologues who “seek to impose on society and government an unvarying formula that is presented as the answer to every problem no matter how complicated. Ideology is hostile to reliance on experience and political compromise.”
Perhaps an example would help.
In 1972, Congress enacted Title IX of the United States Education Amendments. This law provided that any educational program receiving federal funding could not discriminate on the basis of sex.
Fast forward to April 2014, when the Department of Education issued “guidance” to schools on enforcing Title IX. This 46-page document includes a very new interpretation of the statute, specifically, that “sex” in the statute, hitherto understood to refer to the biological sex of a person, would now be interpreted to include “gender identity,” the decision of an individual to take on (through surgical means or dress) the appearance of a person of the opposite sex. The Department said its Office of Civil Rights (OCR) would accept complaints from individuals that they experienced differential treatment in their schools and investigate them as possible violations of the 1972 law.
Then, in January 2015, the OCR sent a letter specifying that the April 2014 document requires schools to provide all facilities and services based on the self-identified gender of students: “The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity.”
Six months later, the Department of Justice filed a “Statement of Interest” document in a federal case in Virginia which argues the OCR position was the appropriate interpretation of the requirements of Title IX. The case was brought by the ACLU on behalf of a student, born female, but who now identifies as male. The student alleges she was allowed to use the boys’ restrooms for a few weeks but the school district then enacted a policy that specified bathroom assignments follow biological sex. For students with “gender identity issues” the district designated private facilities. The ACLU says this “segregates transgender students from their peers.”
Interestingly, the federal District Court actually dismissed the claim, saying the OCR interpretation is not a plausible reading of the law and conflicts with an earlier Department of Education regulation which says schools may segregate based on sex, which this court said must include biological sex. The ACLU has appealed.
Schools, and others, want to temper this ideological commitment so as to balance interests of other students in modesty, privacy and safety, by designating private facilities for transgender students. This is hardly an extreme position but it is being rejected because reality and compassion are outweighed, for the government bureaucrats involved, by ideology.
This same dynamic seems to be at work in the defeat of a Houston ordinance that would have had the same effect on restroom policies and other discrimination laws but did not include basic religious liberty protections.
In many ways, the difficulties we face in finding fair and accommodating ways to live together when it comes to issues of sexuality are becoming more complicated. Unthinking and uncompassionate commitments to ideological purity threaten to make fairness and accommodation impossible.
We can learn a lesson from Houston that most people are just not comfortable with a winner-take-all ideological policy.
For Sutherland Institute, I’m Dave Buer. Thanks for listening.
This post is a transcript of the Sutherland Soapbox, a weekly radio commentary aired on several Utah radio stations. The podcast can be found below.
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