25 Aug Good News about School Restrooms
by Bill Duncan
Reacting to this one-size-fits-all approach, thirteen states (Texas, Alabama, Wisconsin, West Virginia, Tennessee, Arizona, Maine, Oklahoma, Louisiana, Utah, Georgia, Mississippi, Kentucky) challenged the mandate in federal court. Earlier this week, the court issued a preliminary injunction, meaning it ordered the federal government not to enforce the mandate until the legal questions raised by the states could be resolved.
What are the prospects for this decision going forward? The problems with the mandate noted by the judge make it very likely the law will be permanently struck down at this level. The federal government is likely to appeal this injunction or a later final decision. The case will then be heard by the U.S. Court of Appeals for the Fifth Circuit, which is sensitive to concerns about government overreach and which many observers believe would be sympathetic to the states’ claim.
This sensitive issue implicates concerns of safety, privacy, and basic decency in the way we treat those who identify as transgender and those who are understandably sharing shower and other facilities with a person of the opposite sex. By treating this question as an opportunity to make ideological points by overreaching its authority to interpret laws clearly requiring a contrary result, the federal government’s actions do not justify any deference. This week’s decision is a welcome opportunity for local, state and national leaders to correct the mistake.
William C. Duncan is the director of the Marriage Law Foundation and of the Sutherland Institute’s Center for Family and Society. He was previously acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor. He has published numerous articles on constitutional and family law issues in a variety of legal journals.