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It’s Not The Supreme Court’s Job To End Trans Bathrooms, It’s Yours


It’s always easier to complain about something than to improve it. Sometimes, it’s easier to persuade a court to reverse a bad policy than to do the citizen-work that produces good policy from the start. But people who want to govern themselves must reject such a lazy strategy.

Consider the issue of regulating school bathrooms. This was once a blissfully simple issue. Boys used the boys’ bathroom and locker rooms, and girls used theirs. But in our culture’s never-ending quest for a life unbounded by authority and unlimited by facts, children can now declare themselves to be whatever sex they want.

Some would have the world, school community included, bow to their feelings. Others know a line must be drawn. After all, if we let people self-identify as male or female, don’t we also have to let people declare themselves members of a minority race or a particular age?

Pity the public servants in the nation’s schools, who stand in the no man’s land of this bizarre culture war. School boards across the nation are struggling to sort out which type of policy is best for students. Or in some cases, they just want to know which type of policy will survive the inevitable legal challenge.

The law generally requires courts to err on the side of deference to a local school district’s decision. That is exactly what happened in the Pennsylvania case of Doe v. Boyertown Area School District. A group of high school students asked a court to bar their school from allowing transgender students to use the bathroom and locker room that fit their “gender identity” rather than their biological sex. The objecting students claimed that this policy violated their constitutional “right of privacy.”

The Federal District Court and the Third Circuit Court of Appeals rejected the students’ claim and, no surprise, deferred to the school district’s policy judgment. The courts found that even if the other students’ privacy was violated, the school had a “compelling” interest in avoiding the harm that might be caused to transgender students if they were required to use the facilities that matched their biology.

The plaintiff students asked the Supreme Court to overturn this decision, but last week the court declined to hear the case. So for now at least, students and families of Boyertown will have to live with the policy. As much as it pains me to say it, the courts were probably right to defer to the school on this one.

To be clear, the Boyertown policy is a bad policy. School policies—including bathroom policies—should be based on facts. The adults of our world should press children toward knowing and embracing truth, not bending reality to fit their desires. Those with the responsibility of teaching and mentoring children should nurture and protect inclinations toward modesty, not scoff at them.

But the right solution to this bad policy is better policy-making at the local level. In light of how divisive the issue is, it’s no wonder that many would look to a “landmark ruling” from the U.S. Supreme Court to resolve it. The trouble is, that’s not the high court’s job.

Conservatives generally recognize this. It’s why we lament the entire line of precedents built upon a “right of privacy” that allegedly includes a right to abortion and same-sex marriage. The job of the courts is to apply existing law to the particular facts of individual cases; it is not to re-invent the meaning of words to produce a result people want.

Because the courts have so often been willing to go beyond their proper role, we’ve been conditioned to expect them to do so when we can’t get what we want any other way. We take it for granted that the humdrum laws are made by state and local governments, Congress, or even some federal agency. But we’ve come to expect that all the most divisive, controversial issues—what most of the heated debates are about—will ultimately be decided by the courts.

This isn’t the way our government was designed to work. But there’s another problem, too. This latent “Let the courts sort it out” way of thinking effectively kills our motivation for civic engagement. Why should I bother to speak up at school board meetings if some federal court will make the final decision? Why bother finding out which candidates share my views (and voting for them)?

It’s time to stop looking to the courts to come to the rescue in our most pressing policy disagreements. For a self-governing people, the proper solution is much slower and more difficult. It requires us to engage in the messy process of showing up for elections, public discussions, and meetings, all while making a persuasive case for good policy from the start.