Attorney General Loretta Lynch gave an impassioned speech and rebuked North Carolina’s controversial House Bill 2 (HB2). On her May 10 address, Lynch blasted the law requiring individuals to use the bathroom that aligns with their biological sex, and stated the law amounts to “state-sponsored discrimination.”
Lynch and the Obama administration assigned themselves as the vanguard for transgender rights and the mainstream left gladly served their cause. Liberals lionized Lynch’s efforts, and any detractors would be defeated by the naturally progressive nature of history. Case closed.
Not so fast. As noble as the Obama administration’s efforts may be, the Department of Justice’s action represents an overt overreach of executive powers. Once again, the Obama administration has inserted themselves in an issue best left to legislative bodies – not executive ones.
No doubt, the transgender community endures immense pain and suffering. The suicide rate of transgender individuals is 41%, according to a study done by the American Foundation for Suicide Prevention. Transgender individuals are too often mischaracterized as cross-dressers and, even worse, labeled freaks. HB2, which forces transgender individuals to use the bathroom corresponding to their biological sex, only serves to compound their problems.
We should strive to limit the pain of marginalized communities, but we should not do so if the means to that end are tainted. The Department of Justice did just that. The Department of Justice asserted that HB2 violates Title VII and Title IX, which both ban sex-based discrimination. Therein lies the problem, however.
Title IX explicitly bans discrimination based on sex and not gender – a difference that the transgender community constantly highlights – and the Obama administration conducted their own interpretation in an attempt to nullify a law passed by North Carolina.
These matters will be fought arduously in court. While the legal aspect is beyond my realm, the political aspect is not. The actions of the Obama administration raise a more central question to one’s preferred style of governance. Should the executive branch be limited in its scope and careful not overstep its bounds? Or, as Progressives prefer, should the executive branch be an active influencer and attempt to shape legislation through its actions?
“There can be no liberty when the legislative and executive powers are united in the same person,” Montesquieu, whom the founders and framers relied heavily upon, wrote in 1748. While Montesquieu’s concern was with one person holding the whole powers of the legislative and executive, the Obama administration is testing the limits of executive power and is in danger of encroaching on legislative authority.
In doing their own interpretive jiggery-pokery (as the late Antonin Scalia wrote), the Department of Justice is doing more than simply enacting and executing the law. The Department of Justice is attempting to write in words that do not exist in the pre-existing law. Perhaps the scope of Title VII and Title IX should include gender equality – not just sex-based discrimination – but that is not the Obama administration’s decision to make. That decision lies with the legislative body, i.e. Congress.
President Barack Obama should return to the U.S. Senate if he wants to write laws. The White House issued a directive to schools encouraging them to allow students to use the bathroom that aligns with their gender. The directive comes after the Department of Justice sent a letter, which threatened a loss of public school funding if they refused to comply with the law, to North Carolina Governor Pat McCory. All of this amounts to a White House fatwa against sex-based – not gender-based – bathrooms in schools.
The Obama administration is seemingly trying to do the right thing, but they are misusing executive power to do so. Quick, grab a liberal friend. Ask them how they would feel about a Republican president using executive power to dial back gun safety legislation. My best guess is they would be vehemently opposed to the idea. Therefor, let Congress write the laws. The Obama administration needs to take a step back.