Civil Rights 2.0
What you can't see might hurt you.
“We live in a fog of ignorance, and we stumble forward as best we can.”
—David Brooks
At the end of last week’s post about the watershed federal court ruling for the American Civil Liberties Union (ACLU) and its client Gavin Grimm, I copied and pasted some passages from Fourth Circuit Judge Henry Floyd’s decision. These passages quote demonstrably false statements about the ‘science’ of ‘transgender’ brains and bodies which, according to Judge Floyd, informed his thinking about the case. Each was attributed to one of dozens of amicus briefs submitted to the Fourth Circuit by advocacy organizations allied with political ‘trans’-activism, which wields enormous power. The ACLU itself, formerly dedicated to the defense of free speech in America, has assertively renounced that mission by calling for censorship and claiming a hearty share of ideologically-tied donor bounty for its trouble.
The legal basis for Judge Floyd’s decision, meanwhile, was a pair of letters privately exchanged between an opportunistic lawyer and a mid-level bureaucrat at the Department of Education’s Office for Civil Rights (OCR).1
Judge Floyd’s opinion represented a Circuit Court comprised of himself and two other judges, one of whom dissented while the other concurred (i.e., agreed more than he disagreed) with the decision to make sex-segregated bathrooms illegal in the public schools of Maryland, Virginia, West Virginia, North Carolina, and South Carolina; the states in the Fourth Circuit’s jurisdiction.
And that’s how biological sex became subordinate to self-declared ‘gender identity’ under Title IX of the Education Amendments Act of 1972.
Think of a cause you really believe in.
Given a choice, what would you rather do to advance that cause: march for several miles on a hot, humid Sunday carrying a heavy sign you’d painted yourself the night before? Or, compose emails from an air-conditioned office and receive a good salary in return?
‘Many bright, ambitious public lawyers [began to see] the judiciary as the first line of defense against all injustice, and came to regard the test case as preferable to ordinary politics.’
That’s a quote from the book Rights Talk, by Mary Ann Glendon, published in 1991. The book points out a perverse legacy of Civil Rights 1.0 (my shorthand for the legal racial reckoning of the 1950s and 60s): voting rights had been hard fought and decisively won, but then curiously sidelined in favor of a more direct route to social progress: judicial action. What Glendon means by ‘ordinary politics’ is the old-fashioned grassroots incremental changing of people’s minds that led, step by step, to every major victory for black civil rights, women’s rights, and gay and lesbian rights including marriage equality, through decades of organized activity. It’s the ten-mile march with the hand-painted sign, or Civil Rights 1.0.
The ‘test case’ alternative is Version 2.0. Because it bypasses all that marching and speechifying and getting arrested, it’s alluring to idealistic young lawyers for reasons that are understandable; but Civil Rights 2.0 has its downsides, too.
If your goal is to train for and complete a marathon (akin to Civil Rights 1.0 in terms of effort, sacrifice and time commitment), wouldn’t you be smart to skip the training and arrive at the finish line via helicopter, if offered the choice? Well, no: the training and the grinding it out on race day are the whole requirement for any claim to legitimacy and success on your end.
‘Ordinary politics’ is hard, but that might be more of a feature than a bug. It demands a lot of effort and commitment from a lot of people, with sustained intensity, for a long time. Even after all that, there’s no guarantee of winning in the end. But when you do win, you’ll have done it in plain view. Everyone who’s interested can see your work. Whatever change you’ve brought about gets its legitimacy, and also its accountability, from that work. This is true for those who support your cause as well as those who oppose it.
I don’t like that Roe v Wade was struck down, but I could see all the groundwork and follow the lower court rulings and political contests that led to the Supreme Court’s ultimate decision in Dobbs v Jackson Women’s Health. As much as I dislike the outcome, I can’t claim it’s illegitimate. The Grimm decision lacks those markers of legitimacy, so while women’s reproductive rights are a bigger deal to me than whether high schools in Virginia can have female-only restrooms, it’s the Grimm case that makes me much more uneasy. I want sweeping social change to happen in daylight, where we can all see it, examine the truth claims of the arguments in favor, and make sure the arguments against it are given a fair hearing; but that’s not the way Civil Rights 2.0 is designed to work.
OCR: the OG school bully
As Leor Sapir explains, civil rights statutes are intentionally broad, sweeping, and vague as to how they’re supposed to be applied at the local school level. The OCR exists to hand down practical guidance and oversee compliance. When voters cause the White House to switch from Republican to Democratic or vice versa, whole agencies like the Department of Education undergo a sudden personality transplant which might feel very disorienting to teachers, as well as parents.
Because Obama’s election was historic and transformational, his eager young disciples at OCR might have felt (or been) deputized to make historic and transformational changes of their own. On the heels of the Bush Administration, such a hard directional shift would be acutely challenging for local superintendents and school boards. When they were told ‘bullying’ had been redefined to mean sex-based harassment, and that sex-based harassment was being redefined to mean students should use whatever bathrooms aligned with their chosen ‘gender identity,’ what could they have felt but vertigo?
The Office of Civil Rights was led during the Obama years by Catherine Lhamon, who was re-hired in same the role by President Biden after Trump’s term intervened. Lhamon had spent ten years as a staff attorney with the ACLU in Los Angeles; and many of her OCR staff were, no surprise, ACLU-trained and -affiliated. To paraphrase Leor Sapir again: federal agencies trade staff back and forth with advocacy groups or lobbying firms as a routine matter. It’s neither illegal nor necessarily unethical, but it breeds a kind of familiarity that is arguably improper.
If you’re a liberal like me, you notice this pattern and scream about it when the agency is the FDA and the revolving door circulates lobbyists from Perdue Pharma or People Against Puppies2 in and out of positions of power. Maybe only a liberal whose family dynamic has taken this one peculiar turn will notice and object when our team does it. The fact is that no one elects ACLU staff or the lobbyists for opioids-R-us, yet all of them wield enormous power and influence over us, because that’s how the system was designed. More to the point: all of them push for measures that are much more extreme than any elected official would dare argue for in public. Because they do their work off-camera in their own professional echo chambers, their preferences might seem reasonable and ‘mainstream’ to each other, but those preferences would be met with blank stares, or maybe laughter, or horror, at any PTA meeting in America.3
Public schools need the federal funding they receive. Title IX, as re-interpreted by the Grimm ruling, puts that funding in jeopardy if a school is found responsible for a student’s subjective claim of sex-based ‘harassment’. Worse, the rules are not clear, so school boards and administrators are forced to make decisions in anticipation of ever more radical preferences imposed by unelected activists and their regulator friends. The ‘growth mindset’ is not restricted to CEOs and financiers: it’s human nature to carry the ball as far as you can take it, once you’ve got possession.
All of which is as logical an explanation as any for a school district’s adoption of “I am Jazz,” a book written for kindergarteners to celebrate the ‘gender journey’ of a little boy who made the mistake of admitting to his mother that he liked pink, and is now an adult ‘transwoman’ who must cope with obesity, depression and ‘asexuality,’ which is how his mother rationalizes Jazz’s inability to experience orgasm. That turns out to be a side effect of removing a child’s penis and testicles and blocking his puberty so he can grow up grow older looking plausibly female.
Who knew? Not the classroom teacher who, with good faith and kindness in her heart, might have read “I am Jazz” aloud to her kindergarteners just this morning. Not the GSA staff coordinator who gently but firmly implores colleagues to please stop leaving your pronoun badges at home because we can’t afford another federal investigation.
Not even poor old Judge Floyd: for who would doubt that he fully ‘trusts the science’ served up to him by the ACLU and echoed (via amicus briefs) by thirty of its closest friends?
Only a conspiracy theorist with a vivid imagination.
If you’re a new subscriber: I’m little sarcastic sometimes. No one’s really against puppies, except maybe the NRA.
https://www.glsen.org/sites/default/files/2020-04/Trans_ModelPolicy_2014.pdf
Perhaps it shouldn’t be too surprising: the ACLU seems always to have had a penchant for realpolitik: put-up jobs to provoke a confrontation and so on. The end is always seen as justifying the means. It was jarring when I learned of this sort of behaviour on their part, but at least in the past this was aligned to the aims of Civil Rights 1.0 and led to some classically liberal successes. Now there’s the real risk that (to borrow from Eric Hoffer) the movement will finally become a racket.
Very bad decision by that judge with very bad consequences.