The transgender bathroom issue: Why not let states decide?

A federal system of government like we have in the United States recognizes the legitimacy of interests that are national in scope as well as those that are of particular concern at the regional and state level.

Sometimes the federal government may take an active, assertive, even confrontational role in regional and state issues.

This appears to the case with the state/federal issue du jour, transgender access to bathrooms of choice.

In March, North Carolina’s governor signed a bill preventing local authorities in that state from adopting anti-discrimination protections for LGBT people.

The U.S. Department of Justice notified North Carolina that its actions violated the Civil Rights Act and that the state’s failure to comply could result in the loss of millions of federal dollars.

North Carolina filed suit challenging the federal interpretations.

The Justice Department then filed a civil rights lawsuit against North Carolina, and the White House issued guidance directing public schools to allow transgender students to use bathrooms of their choice.

Several other states, including Texas, have vowed to fight the federal government’s ruling on bathroom access.

Lt. Gov. Dan Patrick, brushing off the threatened loss of federal aid should Texas elect not to comply with the federal ruling, stated that President Obama “can keep his 30 pieces of silver.”

Yet there is another way to resolve these issues, one in which the federal government assumes a much less active, even highly restrained, role.

Consider same-sex marriage, an issue with major civil rights implications not unlike those raised by the transgender debate.

In 2004, with no prodding from the federal government, under no federal threats of a civil rights violation, and with no treat of loss of federal aid, Massachusetts became the first state in the union to legalize same-sex marriages.

By June of 2015, when the Supreme Court legalized same-sex marriages in all 50 states, 36 states plus the District of Columbia, representing in total more than 70 percent of the U.S. population, already were legally performing same sex marriages.

Thus, in just 11 years same-sex marriages went from being legal in no states to being legal in all.

Up until the 2015 Supreme Court decision, the federal government was essentially a bystander.

Could this limited federal involvement work with the transgender bathroom issue?

Attorney General Loretta Lynch has presented the bathroom issue as a civil rights case touching on basic principles of constitutional justice roughly equivalent to those associated with the Jim Crow laws of the 19th and 20th centuries, as well as resistance to school desegregation following the 1954 Brown v. Board of Education decision.

As such, she views aggressive federal action as reflected in the North Carolina case to be wholly justified.

Polls show most Americans do not view the bathroom issue this way. Most Americans almost certainly would favor restrained federal interference at least at this early stage of the issue.

Why not first give the states a chance to address this on their own?

As with same-sex marriage, at some later point federal involvement may need to be more robust and more aggressive, as reluctant states must, by court order or otherwise, be forced into compliance.

But first, why not give states a chance? Results might be surprising.

This story was originally published May 25, 2016 at 5:47 PM with the headline "The transgender bathroom issue: Why not let states decide?."