Can the North Carolina transgender bathroom situation occur in Idaho?


The North Carolina Governor, Governor Pat McCrory, is correct. “This is not just North Carolina,” said McCrory, arguing that every university that accepts federal funding is now in the same situation as those in his state. Billions of dollars have been put in jeopardy here. Technically, the Obama Administration’s actions actually affects grade schools through high schools as well. The public universities and colleges have the deeper pockets than the grade schools and high schools; this was one of the reasons why they were targeted more aggressively. In other words, it is already here and billions of dollars can be affected in Idaho as well. The Department of Justice is currently ordering all public schools across the nation to accept their standards, but they do not have the force of law to back it up.

On Tuesday, I went into a coffee shop I frequent and I was asked did I put the governor of North Carolina up to this. I can assure you I didn’t. I have never been to North Carolina. I have written about Title IX and the Department of Education’s infamous “Dear Colleague” letter around a year ago. If this topic would have been pushed during January 2015 at the Legislature, it would have been like pouring gasoline on the fire the “Add the Words” people lit. I had some friends believe what I wrote couldn’t happen here; they were surprised. I wish they were right. I do have some advice for the Idaho Legislature and Governor McCrory’s staff though.

This North Carolina state law HB2 was a backlash result of a Charlotte, North Carolina ordinance involving the private sector. When Idaho’s state government approve laws that overrule what Boise city passes, we have essentially the same thing. In Charlotte, a 7-4 city council vote occurred to prevent discrimination against the LGBT community. This city council ordinance included bathrooms. The concern on the other side involves sex offenders putting women at risk in locker rooms, dressing rooms, and bathrooms; it is a safety issue. It is important to examine what happens in both the private and public sectors in regards to this. Furthermore, HB2 gave the state control over defining discrimination matters involving sex, religion, race, and disabilities and not cities. This is how Idaho and North Carolina differ.

Three pieces of federal law (Title VII of the 1964 Civil Rights law, Title IX from 1972, and the Violence Against Women Act) have already been brought into the current arguments involving North Carolina. I doubt if Dr. Martin Luther King was marching on Selma for transgender bathrooms; Dr. King was a Baptist minister. Title VII involves discrimination for protected classes (e.g., sex, religion, and race) in the hiring process and includes aspects of hostile work environments. Title IX involves equal funding for men and women in schools. This usually causes problems in college sports. Title IX was later extended to include aspects involving sexual harassment and sexual assault. The Department of Education tried to get wording into education legislation after their April 4, 2011 “Dear Colleague” letter to support their position and was unsuccessful. This unsuccessful attempt prompted an introduction of similar wording into the 2011-2012 reauthorization of Violence Against Women Act. This was also unsuccessful.

Private Citizens and the private sector

I have met two mothers that have transgender kids. One mother has the hard dilemma of you love your kid, but these were not the values you tried to instill in your kid. The other mother was put in a quandary because a lack of communication occurred with her kid’s school. The school had to make some decisions unilaterally that particular mother disapproved. My understanding is transgender people are asking for acceptance involving their self-identified sex and most are not trying to seek confrontation. They do take some pride in how well they conform to their self-identified sex. The school aspect will be revisited in the public sector part.

I have a problem when people wish to impose an unwelcome social moral view upon private citizens and private businesses via legislation or edict. Those are personal decisions. For example, forcing a business to have a transgender bathroom would be an unwelcome business expense. Businesses will make policies that best benefit themselves.

Target now has a policy to allow men into their women’s restroom if they self-identify as women. MAC has a successful cosmetics line and they have no problems targeting transgender people as a desirable market. When Ellen DeGeneres became a spokesperson for JC Penny, the company took a hit in profits and public relations due to homosexuality. Those were business decisions. If a store doesn’t want a man in a dress as a customer because they believe it will drive away business, that is their business. It wouldn’t matter if it was a hardware store or a boutique dress shop. It is also their business if they ask that person to come back during less busy hours to help that customer to find something that will work; the business might even find something that will work better than the customer would had found by themselves. Let the “free market” work. This is part of HB2.

For example, if a gay bar wasn’t advertising at a gay pride parade, I would be questioning the competency of the bar owner. At the same parade, if I saw an employee of a religious supply business, I might be questioning why that person may be putting their employer’s business at risk. It is a business owner’s responsibility to protect the image of their business by having understood restrictions on its employees. As a customer, it is my prerogative with which businesses I do have relations and how.

Government doesn’t have this luxury in the same way on protecting its image. Garcetti v. Ceballos, 547 U.S. (2006), does put limits on public employee free speech rights, but these limitations pertain to their immediate workplace. It is more interesting on how the 14th Amendment interacts here; government is not supposed to deny “due process” rights.

During the 2015 Legislature, Idaho Reports gave a good interview with both State Representatives Melissa Wintrow (D) and Brent Crane (R) over “Add the Words.” Both sides used their First Amendment rights; a part of this right is reiterated in Section 10, Article I of the state constitution (Right to Assemble). The people have the right to instruct their representatives and to petition the legislature for the redress of grievances. What was important was both sides were able to air their views. Personally, I would agree with Brent Crane, but with a different set of reasons than he provided on that interview.

Religious discrimination, which is part of Title VII, is the reason I would have problems with “Add the words.” Many gay and lesbian matters run into direct conflict with religion. Government is supposed to be neutral in regards to religion; it is not supposed to be too friendly or too adverse. I do not think the aforementioned mothers with transgender kids would like the Old Testament treatment of cross-dressing. I would also say that the practice of eye for an eye and tooth for a tooth would probably leave us all blind and toothless. The only solace I can give them is there is a difference between acceptance and tolerance. For everyone else, I will suggest find some way to have some compassion.

Public Sector

I do not accept Attorney General Loretta Lynch’s hollow argument of “mean spirited” while using Title VII and Title IX. When Senator John McCain of Arizona asked Eric Holder, Loretta Lynch’s predecessor, about some other different aspects of Title IX implementation after the “Dear Colleague” letter was published, Eric Holder refused to answer any of his questions. The current Title IX matters included restrictions on free speech, reducing from a clear and convincing standard to a preponderance of evidence standard on sexual assault claims, and hiding of evidence and testimony from people being accused of sexual assault or harassment. There were also some actions advocated by the Department of Education that actually put school teachers, administrators, and trustees in greater legal jeopardy if a lawsuit occurred. I actually agree with Janet Napolitano, a prominent Democrat and the 20th President of the University of California, that sexual assault should be investigated by law enforcement and not university officials; these are crimes. Current protocols from the Department of Education ask for universities and colleges to make decisions for corrective actions before the police investigations are completed.

There are some limitations on what can be asked by public employees; these are also under attack. A law enforcement officer asking about the presence of weapons is justified due to safety; this is a narrowly tailored requirement in doing his or her duty. A college sociology professor asking who in the classroom is a concealed carry permit holder has committed what is called a “boundary violation”? (This violates the Idaho constitution in Article I, Section 11 with gun registries being prohibited.) A middle school teacher asking the students in his or her class if they like boys or girls has committed a “boundary violation.” A teacher asking “What type of birth control you use?” has committed a boundary violation. A “Human Resources” school employee in the hiring process asking State Representative John McCrostie (D), “Are you LDS, Catholic, or homosexual?” has committed a “boundary violation.” (This violates Title VII.) Boundary violations are questions so divisive, they stifle free speech and other actions that are legal by just being asked. These “boundary violation” questions violate the Fourth Amendment in regards to search and seizure and can be grounds for discrimination lawsuits.

State Representative Heather Scott (R) had to fight the Veteran’s Administration (VA) to help one of her constituents keep their guns in August 2015. Usually a “boundary violation” comes from direct questioning. In this case, it was a result of coupling databases. The constituent had a mild stroke and the VA had requested a NICS check (National Instant Criminal background check System) from the FBI. The rules require a judicial finding of incompetence before guns can be taken away and this had not occurred. The VA representative was turned away unhappily and constituent rights were protected. If a mild stroke is grounds to take away constitutional rights, does this mean we have to ask for State Senator Cherie Buckner-Webb’s job? Given the average age of the members of the Idaho Legislature is 66, would she be the only person as well? I don’t think so on both counts. “Due process” and proper procedure must be followed to protect everyone’s rights.

I picked on Representative McCrostie and Senator Buckner-Webb (D) on purpose to make some points; I hope they will forgive me. I am going to pick on Representative McCrostie one more time. If he was in my school district, I would be concerned if he would give his partner a hug on school property or at a school event, especially if kids were present. I can already hear emotional cries of words like “homophobe,” unless you are familiar with school policy in my district. Public displays of affection are prohibited by teachers and other employees; this is independent if the partner is married, unmarried, straight, or homosexual. A good friend of mine got his wife in trouble by giving his wife a hug when he came to visit her long before Representative McCrostie became part of the Legislature. The point is public schools are supposed to be neutral territory in regards to actions based upon certain viewpoints. This concept extends into local, state, and federal government. I didn’t base if corrective action should occur if my example agreed with the policy or not. I based it upon actions to conform to the policy. It is irrelevant that Representative McCrostie is homosexual or if he thinks the policy in my school district is good or bad. It would be relevant if he or anyone else was pushing a homosexual agenda onto their students, especially if there is viewpoint discrimination.

The current trend is to allow viewpoint discrimination via the 14th Amendment to attack rights under the 1st Amendment. Viewpoint discrimination has been a major problem for President Kustra and Boise State University (BSU) as an example. BSU discriminated against religious student clubs by denying them funding for six years before a lawsuit occurred. BSU tried to scuttle a talk by Dick Heller on the Second Amendment shortly after Idaho’s Guns on Campus legislation passed. The Abolitionists4life group had attempts by the University administration to directly control their behavior and information content portrayals. These were groups the University did not care if their rights were being abused. These also resulted in cases where university administrators were being sued in their personal capacity. Most students would be afraid of retaliation from a professor; this is an order of magnitude worse because administrators have hire and fire influence over professors.

For Boise State University, the transgender question first occurred just over 12 years ago. Bryan Fischer of the Idaho Values Alliance pointed out the Kustra Administration was advocating the use of the unisex handicap bathrooms for transgender students. When the University administration was questioned about this, they became evasive and even tried to deny what they had posted. They would have been better off by being forthright on the advocating the unisex handicap bathrooms in that fashion.

I have some friends that believe you should lie when you get a boundary violation question, because that public employee has no right to know that information. I do not subscribe to that viewpoint. I have some very good liberal friends with whom I do disagree about many matters. A part of their integrity is they do not have to lie to me. A part of my integrity is I do not have to lie to them and I personally wouldn’t even consider it. We agree to disagree on many things, but have honest relationships. I am in the camp of telling public employees that have boundary violation questions they are not entitled to that information. The Kustra administration does not even have that type of integrity. If they were asked about Title IX, would they say they gave in to the federal government to preserve their federal funding or would they claim they see no problem? How many other schools and universities would fall into this latter category as well?

Since Title VII is mostly about employment, I see a hard time for the Obama Administration to apply that here in regards to schools. That leaves Title IX. Nowhere in Title IX is there a mention about gender-identity. I recently talked to a state representative that had to look at the sexual orientation in regards to some administrative rules in a different context and how the federal government presented them. The Obama administration has included sexual orientation and gender-identity as part of their interpretation of delineating different sexes; this created many categories and their seemed to be a purposeful obfuscation where lines that define categories exist. Does this mean bisexual people get their own bathrooms or even prisons when it comes to a juvenile corrections situation? The last I looked, there was male and female and it did not matter to whom these people were attracted when it came to sexual discrimination. A male chauvinist or a lesbian can both be charged with sexual harassment if they asked a woman to dress in a provocative manner.

Pieces of advice
This is the best I can do on coming up with advice for North Carolina and Idaho.

  1. Examine the analysis when Harvard was being bullied into the “new” Title IX standards, especially what Hans Bader presented. Hans Bader is a Harvard law professor and he used to work for the Department of Education in the Office for Civil Rights. My understanding is these standards did not go through the Administrative Procedures Act, which means nobody was allowed to comment on these standards. The new standards are not considered law as well. To further complicate matters, the Department of Education’s standards actually contradicts a 1999 U.S. Supreme Court case, the Davis v. Monroe County Board of Education
  2. Ask for the public comments when the Title IX standards were implemented in regards to the changes incorporated via the “Dear Colleague” letter. There are none.
  3. The Department of Education threat involving funding for schools has a major flaw in it. This power is an extension of Congressional spending authority; Congress can withdraw that authority as well. Talk with your Congressmen and U.S. Senators about this.
  4. The Idaho Legislature is not going to like this piece of analysis. The Idaho Supreme Court has already held the Legislature responsible for the uniform funding of Idaho’s public schools. The federal Department of Education has systematically attacked this uniform funding mechanism as well as state sovereignty matters under the 10th The University of Idaho was not put on a White House Task Force list by accident. I assume similar arguments exist for other states. This puts some of the responsibility on these state officials.
  5. For North Carolina, ask yourself how much of this is to give Democrat Attorney General Roy Cooper a platform to run against Republican Governor McCrory. This Democrat has already said he will not enforce HB2.

For Idaho, have your legislators contact our Attorney General to see what can be done. Recently, State Representative Rich Wills (R) publicly asked me to take a problem directly to the Idaho Attorney General involving a different matter that he ignored for over a year without a response. Idaho’s Attorney General does not have to respond to a member of the public, but does have to respond to state legislators. Representative Wills is fully aware of this and just gave me reason to vote for his primary opposition. I already had this discussion with Idaho’s Attorney General years ago. The people have the right to instruct their representatives and to petition the legislature for the redress of grievances.

Usually, I am a critic of Idaho’s Governor Butch Otter. In this matter, I support what Governor Otter, Lt. Governor Little, and Superintendent Ybarra have said that is an overreach from the Obama administration. In fact, I would probably say they are being polite on how the Obama administration has shown contempt for state governments and the judicial and legislative branches of the federal government.