Civil rights then and now

From the sublime to the ridiculous

Maybe it’s because I started writing this on Martin Luther King Day, but when I think about civil rights in America, these are the images that come to mind:

MLK addresses a crowd estimated at 260,000 at the March on Washington for Jobs and Freedom, August 28, 1963

A member of the Little Rock Nine, the first black students to attend an integrated public high school in Arkansas, Sept. 4, 1957 (three years after Brown v Board of Education declared segregated public schools unconstitutional)

Police turn fire hoses and attack dogs on black student protesters in Birmingham, 1963

The American civil rights movement, based mainly in African American churches and colleges of the South, involved marches, boycotts, and many acts of civil disobedience such as sit-ins, as well as voter education and voting drives. Most of these efforts were local in scope, but the impact was felt at the national level—a model of civil rights organizing that has since spread all over the globe.

— Britannica

‘Civil rights,’ by definition, must be given and guaranteed by the power of the state. The sweeping protest movement in the American South was a reaction to the ‘Jim Crow’ system of racially-motivated ad-hoc oppression and violence (the literal kind) that was upheld by local governments and perpetuated by acts of vigilante terror, most of which went unpunished. Those Federal protections that were in place, such as for voting rights, were routinely denied or undermined in pockets of the South where some sheriffs and police felt entitled to harass, intimidate and assault black citizens more or less at their whim. Early protests were concerned with allowing black Americans to enjoy rights they already possessed under federal law. Meaningful change was achieved slowly and incrementally from there, culminating in the 1964 Federal Civil Rights Act.

That history is familiar to most of us, but I’m recounting it here because of the remarkable contrast between the heroic archetype of how we once ‘did civil rights’ in America and the version that prevails today. More on that contrast later.

Leor Sapir, a fellow at the Manhattan Institute, writes and speaks eloquently on the evolution of civil rights legislation in the United States. The substance of this article borrows heavily, but not verbatim, from his talk at last November’s Genspect conference as well as various podcast interviews and articles in City Journal. Any errors in the re-telling are definitely mine.

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How a campaign to stop school bullying ended up dismantling Title IX:

The first Obama administration came into office in 2009 with lofty goals. After putting the national economy back on track following the catastrophic financial collapse that was George W. Bush’s parting gift, America’s first black President sought to unite the country under a banner of shared values like fairness, dignity and respect. His ambition to move healthcare access from an employer-mediated privilege to a basic human right was consistent with those values. Obama and other leading Democrats also saw both the need and the opportunity to bring young people into the national political conversation: a good idea on the merits and a smart strategy for strengthening the Democratic Party going forward.

One issue impacting young people was bullying, an age-old problem made suddenly more virulent with the advent of smartphones. Now, for the first time, middle- and high school students targeted by mean-spirited peers faced online defamation and anonymous attacks that threatened victims’ privacy and reputations in ways the analog bullies of the past couldn’t have achieved. To the earnest young staffers selected to represent Obama’s OCR —the US Department of Education’s Office of Civil Rights — this issue felt urgent.

From the Office of Civil Rights website:

“OCR’s mission is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools.”

One problem: bullying is, technically, speech. Ever since the campus Free Speech Movement of the Vietnam War era, courts have strenuously resisted constraints on student speech. Also, bullying doesn’t automatically select for protected identity groups. Therefore, special goggles would be needed to view bullying as a natural fit for civil-rights activism.

Undaunted, in 2010, the OCR convened a working group tasked with writing a new policy for the prevention of bullying in public schools. In the process, they began to investigate claims of what they now called ‘bullying and harassment’ in schools, thereby complicating an expression of speech and ushering it into a category of more- severe harm. To put a still finer point on the specific behavior needing prevention, OCR further modified ‘bullying and harrassment’ to ‘sex-based bullying and harrassment.’

Harassment was now defined by OCR as any speech that might be perceived as ‘subjectively unwelcome’ by any student.

Investigators had little trouble finding claims of harassment using this solicitous new standard. Many of the complaints featured students who identified as transgender, and OCR began to connect the peer bullying these students experienced with school policies preventing trans-identifying students from using opposite-sex restrooms on their campuses. The emerging pattern was shaping up to look like a civil-rights cause after all.

In cases they found egregious, OCR subjected school districts to ‘systemic investigations’ that exposed local educators and officials to lengthy, embarrassing interrogations. Scarce resources had to be allocated to defending against charges that students had suffered ‘subjectively unwelcome’ treatment in their care.

Investigations typically concluded with the district signing a Consent Decree, which acknowledged the mistakes of the past and offered guidance for avoiding future unpleasantness. Alert superintendents from neighboring districts would do well to inoculate themselves by proactively signaling whatever consent seemed prudent. An ever better idea might be to contract with the local chapter of GLISN, GLAAD, or the ACLU for expert advice and ongoing professional development training. Those advocacy groups and others like them were seen as partners in progress by many in OCR, so whatever advice they might impart to a local school district would be valuable. It might even confer a layer of protection worthy of a budget investment.

In 2011, Education Secretary Arne Duncan communicated OCR’s findings and recommendations on bullying and harassment in a ‘Dear Colleague letter’ to all public school administrators and school boards across the US. This type of guidance was not uncommon, but neither was it intended to replace or override existing laws, nor to substantially alter any current policy or rule.

We can easily grasp how a group of young lawyers, many of them recent graduates of elite law schools, would be passionate supporters of what they would call trans rights. Still, no amount of enthusiasm could manifest a Supreme Court decision that hadn’t come yet. The constitution still recognized two biological sexes as the immutable, ascribed characteristics they are, and Title IX legal protections remained in place.

By 2014, the stage was set for a major test case. That case presented itself in a 15-year-old trans-identifying female from Gloucester County, Virginia, called Gavin Grimm. With the ACLU as her guide and counsel, Grimm filed a complaint against the Gloucester County School Board over bathroom access. As Dr. Sapir’s granular post-mortem examination reveals, even the first appearance of this embryonic test case was sufficient to provoke a bad-faith gambit by at least one activist intent on pressuring the regulators. Considering the regulators were OCR staff attorneys and therefore likely the ideological soul mates of trans-activists, such a gambit might feel to the activist like a low-risk opportunity to reap potentially huge rewards.

Just ask @Sworn Knight of the Transsexual Empire

That was, at the time, the Twitter handle of Emily Prince, a Virginia based lawyer and activist. In an apparent effort to leverage the Grimm action while putting her own thumbprint on the scale, Prince wrote a private letter to the Justice Department, referring to the Gloucester County case and pointedly asking how the Obama administration planned to handle this claim’s central question regarding the status of ‘transgender’ students under Title IX. In her letter, Prince either promised or threatened to share the Department’s response with all of her ‘contacts at NPR, BuzzFeed and Metro Weekly’ (a Washington DC-based LGBT publication).

The Justice Department passed Prince’s letter over to Education’s OCR, where it landed on the desk of a mid-level deputy named James Ferg-Cadima. Presumably sensitive to the threat of bad press in the kind of media outlets the Administration would be loath to disappoint, Ferg-Cadima wrote a private letter back, relating that it was his impression that schools generally have to treat students according to their gender-identification. Both he and Prince would certainly have known that this privately-shared hunch was unsupported by any law or precedent.

Before a federal agency can issue a new rule or policy, it must first undertake a ‘Notice and Comment’ period where the public is alerted to the new rule and given the opportunity to raise concerns or objections. OCR hadn’t done this. Nevertheless, James Ferg-Cadima’s private reply to ‘Sworn Knight’s’ private inquiry would manage to become the legal basis for the dismantling of Title IX of the Education Amendments Act of 1972.

Here’s how it happened:

Though Gavin Grimm had only ‘come out as trans’ to her mother the prior year, she would later argue persuasively that she had always known she was in fact a boy. That declaration led Grimm’s ‘affirmative’ therapist to diagnose gender dysphoria, refer Gavin to an endocrinologist for hormone treatment, and recommend she ‘present as male in daily life.’ Also: that Gavin ‘be considered and treated as male, … and allowed to use restrooms consistent with that identity.’

Gavin’s high school community was amenable at first, agreeing to pretend Gavin was a boy and allowing her to use the boys’ bathroom for the first two months of her sophomore year. Then, at a November school board meeting, parents and other community members voiced objections, some of which raised reasonable safety and privacy concerns which the board took another month to consider. At the December meeting, its members voted 6 to 1 to modify the district’s bathroom policy in a manner it felt would respect every student without discriminating or singling out any one student or identity group. Sex-segregated restrooms would be restored while three additional single-room facilities would be built. These would be open to all students, not just those with an identified ‘gender issue,’ thereby giving every student in the school the same two choices: sex-designated public facilities, or sex-irrelevant private ones. Construction began almost immediately, but until the new restrooms were operational, Gavin could use a private toilet next to the nurse’s office. During that brief interval, according to the court transcript:

“Grimm recalls an incident when he stayed after school for an event, realized the nurse’s office was locked, and broke down in tears because there was no restroom he could use comfortably. A librarian witnessed this and drove him home. In a similar vein, and even after the single-user restrooms had been built, Grimm could not use those restrooms when at football games. He recounts a friend having to drive him to a hardware store to use the restroom; on another occasion, his mother had to come pick him up early.”

In light of those traumatic episodes, Gavin and the ACLU team found the school board’s solution unacceptable. The narrative continues:

“The single-stall restrooms were completed on December 16, 2014, one week after the Board enacted the policy.¹ Once completed, however, they were located far from classes that Grimm attended. A map of the school confirms that no single-user restrooms were located in Hall D, where Grimm attended most classes. Moreover, the single-stall restrooms made Grimm feel “stigmatized and isolated.” He never saw any other student use these restrooms. Principal Collins testified at his deposition that he never saw a student use the single-user restrooms, but that he assumed that they were used because they were cleaned daily. As commonly occurs for transgender students prohibited from using the restroom matching their gender identity, Grimm practiced restroom avoidance. This caused Grimm to suffer from recurring urinary tract infections, for which his mother kept medication ‘always stocked at home.’

The lawsuit, G.G. v Gloucester County School Board, was filed in district court shortly thereafter. It took a circuitous path but was ultimately decided by the Fourth Circuit Court of Appeals ‘resoundingly’ in favor of Grimm and the ACLU. The deciding judge, Judge Floyd, was one of three who comprise the Fourth Circuit. Another judge concurred with the decision, and the third dissented. In his ruling, Judge Floyd wrote:

“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is, resoundingly, yes.’

There was no law or statute in place that would instruct a judge that ‘gender identity’ and ‘sex’ have equal legal status. There was however a letter, signed by an OCR lawyer, responding to a citizen’s inquiry. Of course that lawyer was Mr. Ferg-Cadima and the inquiring citizen, Emily Prince, aka @Sworn Knight of the Transsexual Empire. Their private correspondence became the determinative artifact that enabled Judge Floyd to ‘defer to OCR guidance’ in formulating his considered opinion.

One year later, in May of 2016, a fresh ‘Dear Colleague’ letter instructed America’s educators that, in recognition of the Grimm ruling, all students must now be treated in accordance with their stated gender identification.

After losing in a manner that begs some important questions, Gloucester County appealed to the US Supreme Court on grounds that the ruling for Grimm relied on circular, non-legal exchanges of what amounts to rhetoric between the Office of Civil Rights and the Fourth Circuit. If that’s what it sounded like to you, you’re not alone: the Supreme Court agreed to hear the appeal in its next term. The reason that hearing never happened was that following the election of Donald Trump, a new Department of Education retracted the controlling Dear Colleague letter of 2016.

So the decision, however circular, creative and maybe not-all-that-legal, was left standing.

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Political incentives are complicated. I can’t persuade myself (and I don’t want to) that Barack Obama set out to corrupt the civil rights infrastructure of the nation for the purpose of sterilizing kids. Whatever is the moral of this story, it’s not that. At the same time, I can remember when the ACLU stood for the protection of free speech, and I think its moral disintegration is something we need to confront, even if we’d rather look away.

Determining which players have acted in bad faith and to what degree is an intriguing, distracting question for the future. The most disheartening result, glancing back at history and then taking in the present, is the total disconnect between the exalted civil rights legacy of the recent past (only about 65 years ago) and the extent to which the whole concept has been diminished to what looks like an incoherent meme, a caricature of former triumph.

If Civil Rights 1.0 meant showing courage and sacrifice by marching, picketing, going to jail for civil disobedience, changing minds through moral and religious appeals to justice, and through patient discourse; then what does Civil Rights 2.0 mean? I’ll take a stab at it:

Argument and persuasion are unnecessary for professional activists, who neither teach nor preach but quietly work the levers of the administrative state from sheltered keyboards. Such skills are prized and cultivated at brand-name NGOs whose ‘corporate partners’ willingly trade pre-tax earnings for colorful certificates of virtue, because these are shown to enhance shareholder value. Best of all, version 2.0 shields the user from ‘the people’, with their time-wasting questions, opinions and values. Warriors for social justice 2.0 can edit the legal impact of human biology without even wrinkling their khakis. Progress is truly awesome.

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For the record, the winning ACLU-led team was supported by amicus briefs from each of the following (I edited the list — it’s even longer):

NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.;

ADVOCATES FOR INTERSEX YOUTH;

THE TREVOR PROJECT;

NATIONAL PARENT TEACHER ASSOCIATION;

GLSEN;

AMERICAN SCHOOL COUNSELOR ASSOCIATION;

NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS;

PFLAG, INC.;

TRANS YOUTH EQUALITY FOUNDATION;

GENDER SPECTRUM;

GENDER DIVERSITY;

CAMPAIGN FOR SOUTHERN EQUALITY;

HE SHE ZE AND WE;

SIDE BY SIDE;

GENDER BENDERS;

AMERICAN ACADEMY OF PEDIATRICS;

AMERICAN ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY;

AMERICAN ACADEMY OF PHYSICIAN ASSISTANTS;

AMERICAN COLLEGE OF PHYSICIANS;

AMERICAN MEDICAL ASSOCIATION;

AMERICAN MEDICAL STUDENTS ASSOCIATION;

AMERICAN MEDICAL WOMEN'S ASSOCIATION;

AMERICAN NURSES ASSOCIATION;

AMERICAN PSYCHIATRIC ASSOCIATION;

AMERICAN PUBLIC HEALTH ASSOCIATION;

ASSOCIATION OF MEDICAL SCHOOL PEDIATRIC DEPARTMENT CHAIRS;

HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY;

LBGT PA CAUCUS;

PEDIATRIC ENDOCRINE SOCIETY;

SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE;

SOCIETY FOR PHYSICIAN ASSISTANTS IN PEDIATRICS;

WORLD PROFESSIONAL ASSOCIATION FOR TRANSGENDER HEALTH;

LOS ANGELES UNIFIED SCHOOL DISTRICT;

SAN DIEGO UNIFIED SCHOOL DISTRICT;

THE SCHOOL DISTRICT OF SOUTH ORANGE AND MAPLEWOOD;

LAS CRUCES PUBLIC SCHOOLS;

THE WASHINGTON CENTRAL UNIFIED UNION SCHOOL DISTRICT;

STATE OF NEW YORK;

STATE OF WASHINGTON;

STATE OF CALIFORNIA;

STATE OF COLORADO;

STATE OF CONNECTICUT;

STATE OF DELAWARE;

STATE OF HAWAII;

STATE OF ILLINOIS;

STATE OF MAINE;

STATE OF MARYLAND;

STATE OF MASSACHUSETTS;

STATE OF MICHIGAN;

STATE OF MINNESOTA;

STATE OF NEVADA;

STATE OF NEW JERSEY;

STATE OF NEW MEXICO;

STATE OF NORTH CAROLINA;

STATE OF OREGON;

COMMONWEALTH OF PENNSYLVANIA;

STATE OF RHODE ISLAND;

STATE OF VERMONT;

COMMONWEALTH OF VIRGINIA;

DISTRICT OF COLUMBIA

Here are some notable quotations from the final opinion, derived from those briefs:

“To be sure, many of us carry heavy baggage into any discussion of gender and sex. With the help of our amici and Grimm’s expert, we start by unloading that baggage and developing a fact-based understanding of what it means to be transgender, along with the implications of gendered-bathroom usage for transgender students.

“…Such people are transgender, and they represent approximately 0.6% of the United States adult population, or 1.4 million adults. Just like being cisgender, being transgender is natural and is not a choice.”

(In another demonstrable falsehood supplied by one of the amici, the opinion by the concurring judge noted that “‘intersex’ persons make up 1.7% of the population, an even larger proportion than ‘transgender’ persons.”)

“Incongruence between gender identity and assigned sex must be manifested by at least two of the following markers: (1) “[a] marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics”; (2) “[a] strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender”; (3) “[a] strong desire for the primary and/or secondary sex characteristics of the other gender”; (4) “[a] strong desire to be of the other gender”; (5) “[a] strong desire to be treated as the other gender”; or (6) “[a] strong conviction that one has the typical feelings and reactions of the other gender.”

“For many years, mental health practitioners attempted to convert transgender people’s gender identity to conform with their sex assigned at birth, which did not alleviate dysphoria, but rather caused shame and psychological pain.”

“Fortunately, we now have modern accepted treatment protocols for gender dysphoria. Developed by the World Professional Association for Transgender Health (WPATH), the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th Version 2012) (hereinafter “WPATH Standards of Care”) represent the consensus approach of the medical and mental health community, and have been recognized by various courts, including this one, as the authoritative standards of care,”

“There are no other competing, evidence-based standards that are accepted by any nationally or internationally recognized medical professional groups.”

1. I know what you’re thinking: this is arguably the most astonishing claim in the whole saga. How does a school district build three bathrooms in a week? I’m equally dumbfounded.

Links to sources:

Leor Sapir’s Genspect presentation

Podcast interview by Stephanie Winn

Gender: A Wider Lens, episode 88

A concise (written) legal summary of the Grimm case