Bathroom sign

The Controversy of Bathroom Bills at APA Central

Richard Nunan presented a paper as part of the Society for LGBTQ Philosophy Colloquium on Bathroom Bills at the APA Central Division Meeting in March 2017 in Kansas City.  Here, Nunan reflects on the session.  

Richard, for those who missed it, can you give an overview of the Society for LGBTQ Philosophy session in which you participated?  

Our session was organized last September by Andrea Pitts (University of North Carolina, Charlotte), who had the foresight to recognize that anti-LGBTQI legislation generally, and bathroom bills in particular, might prove to be very salient right now.  The presenting panel consisted of Loren Cannon (who teaches at California State / Humboldt State University), Claire Lockard (currently working on her Ph.D. in Philosophy at Loyola / Chicago), and me.

Loren began by drawing our attention to some work of San José State philosopher Carlos Alberto Sánchez, on a 2010 Arizona law, SB1070, designed to target undocumented Hispanic residents. It struck Loren that trans individuals often seek documentation to support their identity (driver’s licenses, birth certificates) and that obtaining such documentation supports positive social participation, just as it does in the case of immigrants seeking documentation to live and work in the U.S.  However, in both cases–Arizona SB1070 and bathroom bills like North Carolina HB2–the laws create a climate of fear that affects individuals who have the privilege of obtaining such documentation, as well as those that do not.  HB2 and similar bills are designed to cleanse social spaces of trans individuals, just as anti-immigrant bills are designed to do the same to their target demographic.  And in both cases, the relevant class of bills were sparked by an ‘enough is enough’ moment: in the case of SB1070, the yet unsolved murder of an Arizona rancher who lived near the Mexican border; in the case of bathroom bills, Loren contends that it was the 2015 Supreme Court success of the Marriage Equality Movement.  In the case of HB2 in particular, it was that plus the Charlotte legislation prohibiting discrimination of LGBT individuals.  Transgender people are simply now the most vulnerable “queer” targets of convenience for disaffected social conservatives who currently control numerous State governments.

Lastly, Loren discussed how immigrants who are trans, and even seeking asylum in the U.S due to injustices in their country or origin, face a litany of challenges regarding gaining such asylum, and simply being treated justly by federal agencies.  In spite of recently improved guidelines, there remains evidence that the Department of Homeland Security, Immigrations and Customs Enforcement treatment of trans individuals leaves them vulnerable to disrespect, abuse, and violence.

Claire spoke next, focusing on a more narrowly drawn practical question: what should campus activist students do in the face of institutional responses of their own schools which they regard as inadequate to a particular legislative threat to the well-being of LGBTQI State residents?  Her own experience concerned the relatively tepid response of her undergraduate alma mater, Elon University, to HB2’s passage.  Claire asked: how might students effectively resist HB2 on their campuses, while also resisting institutional responses which claim to resist HB2 and support the local queer/trans community, but which may actually constitute gestures that further marginalize the community with which they claim solidarity? Relying on Sarah Ahmed’s work on non-performative institutional speech acts, Claire focused on a statement issued by Elon within days of HB2’s passage, reaffirming the University’s commitment “to inclusion and equal protection” while making no mention of its queer and trans students, faculty, and staff.

Elon’s statement also reassured its audience that since Elon was private, it would be unaffected by HB2, which of course struck LGBTQI readers as a willful, or at best oblivious, denial of a socio-political reality now confronting even the residents of the Elon bubble (in its semi-rural setting outside of High Point, North Carolina).  It also struck Elon’s queer community as a form of rather cynical political opportunism: grabbing the chance to reassert the University’s commitment to inclusion while doing nothing substantive to augment that commitment in the face of this new social hostility.  “The saying becomes the doing,” as Sarah Ahmed would put it in her discussion of this sort of institutional behavior (although in her case the focus was on residual institutional racism rather than homophobia or transphobia).  The statement goes on to tout Elon’s 90 single-occupancy gender neutral bathrooms as evidence of its commitment.  This was misleading, since bathrooms in many of the most public classroom areas were not gender neutral. Worse, it simultaneously delivered a coded message to transphobic members of the Elon community: don’t worry, the only gender neutral restrooms we have are single occupancy.

In other words, the very statement designed to reassure LGBTQI members of the Elon community was also designed to address the conservative social concern that Loren described in his presentation: to cleanse social spaces of trans individuals. Sometimes this hostility towards “the other” becomes so culturally pervasive that it pops up in social contexts where you might not expect it—even in the spheres of “liberal elites”.  One of the issues which worried Loren in his paper was just how insidiously endemic such hostility can quickly become.

What was the focus of your paper specifically?

I presented last, focusing on the legal issues associated with bathroom bills in the federal courts, which have been moving rather swiftly just lately.  I concentrated on two cases and their potential fallout: Gavin Grimm’s hostile treatment at the hands of the Gloucester County School Board (in a socially conservative, primarily rural, Virginia Tidewater polity), and the judicial roadblock against Executive Branch interpretive authority at the hands of North Texas Federal District Court Judge Reed O’Connor.  He decided in August 2016 to issue a nationwide preliminary injunction against the Obama Administration’s interpretation of the Department of Education’s Title IX implementation regulations, which provide for “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” 34 C.F.R. § 106.33 (administrative implementation language crafted back in the 1970s).

Both cases revolve around the following Obama Administration advisory letter of interpretation: “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.” (Language first issued in January 2015, and made more official in the form of a “Dear Colleague” letter to Title IX-supported educational institutions in May of 2016.)

There were a number of interesting things about subsequent developments which I discussed in my presentation.  The Fourth Circuit’s arguments in its decision to uphold Gavin Grimm’s right to use the high school bathroom of his choice under Title IX were remarkable in their sensitivity to transgender rights issues, as compared with court opinions less than a decade ago. The Supreme Court’s decision to put the Fourth Circuit decision on hold (in August 2016) and subsequently to take the case itself (Gloucester v. G. G., cert. granted 10/28/16) and schedule oral arguments for itself on March 28, 2017, was even more surprising.  The Trump Administration’s very recent decision to discard the Obama Administration’s interpretation of the relevant Title IX regulatory language was not so surprising. (Interpretive language, unless issued by the courts, does not have the permanence of statutory language.) But this was followed by SCOTUS’s invitation to the litigating parties to weigh in on the Trump Administration action.  Both responded, on the day before my presentation, that the Court should proceed, and decide on the merits of the Obama Administration interpretation anyway.

With respect to the Texas case (State of Texas v. U.S. [8/21/16]—hardly the first case with that name!), the most striking feature was the national scope of O’Connor’s preliminary injunction.  I explained what I understood to be O’Connor’s basis in precedent, and why I thought it implausible.  But then I pointed out that James Robarts had done much the same thing in his temporary restraining order against the Trump Administration’s hasty immigration ban, also applied nationally (WA & MN v. Trump [2/3/17]).  District court judges can be on the side of the angels in exercising this novel power, too.  In the past however, district judges have tended to defy other authorities only locally, in their own jurisdictional area, as federal district court judge Brevard Hand did in several free exercise / establishment clause cases in Alabama back in the 1980s.  Where this new development of federal district judges inserting themselves into national politics will wind up is anybody’s guess.

What sorts of discussions took place with the audience?

A second interesting aspect of Claire’s paper, not mentioned in the initial summary above, concerned the question of a strategically effective response to the local community aspect of the two-pronged resistance challenge.  This was a matter which was explored in more detail during the discussion following Claire’s formal presentation.  There is a problem of mixed messages when you critique a professedly supportive institution like your own university or college, for its failings with respect to issues related to the larger social hostility of a measure like HB2.  (And as Claire pointed out, the issue of institutionally inadequate behavior, and how members should respond to such behavior, is certainly not peculiar to Elon.)

Although the need to protest ill-conceived policies may sometimes be paramount, there is a competing strategy which one might consider, related to Alison Bailey’s concept of using strategic ignorance as a tool of the oppressed.  If an institution professes to embrace inclusionary policies, take the Administration at its word, and simply ask, “innocently,” why the professed policy has not yet been applied this way or that way?  Assume that such professions are sincere rather than being themselves strategic, and press administrations accordingly, as if they have made promises that we may now reasonably expect them to keep.  Of course, the prospect of this alternative makes it that much harder to know just when (1) it is best to be confrontational, or (2) it is instead wiser to catch flies with honey, and (3) when the latter approach devolves into complicity with policies that are fundamentally discriminatory.  These are really hard issues to resolve, where the devil is very much in the details.

Yet another topic of discussion has proceeded past our session, when Loren emailed me on Monday morning, March 6, about an hour after the event, to inform me that SCOTUS had punted on the Gavin Grimm case, asking what I thought that might mean.

Specifically, reacting to Attorney General Jeff Sessions’ revocation of the Obama Administration’s Title IX interpretation (signed also by Betsy DeVos, apparently under duress, Trump having sided with Sessions), the Supreme Court issued the following order:

The judgment [of the 4th Circuit] is vacated, and the case is remanded to the United States Court of Appeals for the 4th Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

My response to Loren (and to Claire and Andrea, since this was a joint ongoing discussion) was as follows:

SCOTUS has done this in direct contravention to the wishes of both parties to the pleadings, which is rather unusual.  I read this language as an invitation for the 4th Circuit to duck the issue of the substance of the meaning of ‘sex’ in the relevant Title IX language, and simply declare that since the current Administration no longer relies on the Obama Administration’s interpretation in gender identity cases, the 4th Circuit does not have to rule on that either.  It would be the cowards’ way out, but I wouldn’t be terribly surprised if the 4thCircuit does just that, because the federal courts generally are reluctant to stick their necks out in the culture wars when they don’t have to do so.

In their defense, the courts have to worry about over-broad or culturally aggressive rulings coming back to haunt them in unanticipated ways.  In a sense, that’s precisely what happened in Roe v Wade, as Ruth Bader Ginsburg has pointed out on more than one occasion. An appeal to SCOTUS by Grimm might then simply be declined (denied certiorari), and we’d be back to the status quo before Jan 2015, when the Obama Administration interpretation first surfaced.

Sorry I can’t be more optimistic—except to say that the exposure is potentially good over the long run. It would of course be really stunning if the 4th Circuit were to rule—in the right way—on the substance of the merits of the Obama Administration interpretation.  But they didn’t actually do that before in G.G. v. Gloucester Co. School Board (August 2016), and are unlikely to do so now, when they no longer have to.  That really would be invoking the 14th Amendment’s Equal Protection Clause, the elephant in the room on which Gavin Grimm also based his initial complaint, but which the District Court, the 4th Circuit, and SCOTUS have all assiduously avoided addressing thus far.

How do you hope this research will shape policy?

Unfortunately, I do not harbor much hope at all for philosophers influencing policy on a short-term basis.  We are not widely read, after all, and our culture has a long history of anti-intellectualism.  We would probably all be better off writing fiction, if we happened to be good at it.  Short of that, our best hope may be the incremental effects of what we say and do in and out of the classroom on our campuses.  Our students might be a little affected by our convictions, at least to think for themselves rather than march in lockstep with prevailing cultural norms, and their views in turn might affect others.

Blogs like this one, too, are a relatively new social development that may ultimately be a more effective vehicle for the transmission of progressive ideas than academic journals, especially if non-philosophers check in on their content occasionally.

What are some areas for further research on this topic?

As Loren pointed out in his presentation, there will be socially conservative backlash to every advance in social and legal recognition of LGBTQI rights, and each will be an occasion for more explaining, more revelations about the moral bankruptcy of such reactions.

What do you hope participants will take away from the session?

The encouragement to continue with this work.  It is important, even if it often seems neglected to those who persist in doing it.

Richard Nunan is a Professor of Philosophy, and Affiliated Professor of Women’s & Gender Studies, at the College of Charleston in Charleston, South Carolina.  He teaches and publishes in the areas of Philosophy of Law, Political Philosophy, Gender Studies, and Philosophy of Film.

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