Friday, June 14, 2013

wee the people

I really need to stop reading the newspaper.  At least, stop reading newspaper articles about legal matters.

"Choice of bathroom is at issue" is an Associated Press story about a case that was argued in the Maine Supreme Court on Wednesday.  The issue?  Whether transgender students can use the bathroom of their choice.

Let's set aside the policy debate for a moment.  I am more interested in how the reporter, David Sharp, chose to relate this story to us.

David appears to be a clever enough fellow.  He tells his readers that the court's decision will turn on an interpretation of the Maine Human Rights Act -- an act that bars discrimination on the basis of sex or sexual orientation, but also requires separate restrooms for boys and girls.

And that is the last we hear of the Maine Human Rights Act.  Not even a taste of what the actual language of the statue requires.  As a result, the reader has no guide to determine whether the school's administration violated the statutory rights of the aggrieved student.

And what is the alleged violation?  Nicole Maines was born with the body of a male.  But Nicole had girl thoughts from a young age.  When Nicole started using the girl's bathroom at school, the girls complained.

The school administration saw the statutory bind it was in.  And offered what seemed to be a Solomonic decision.  Nicole could use the staff bathroom.

Hold on a minute, says Nicole.  "I am woman/ hear me pour."  (OK.  I made that part up.)

Instead of accepting what we call a "reasonable accommodation" in my late-lamened profession, Nicole went to court.  And lost.  She is now, as David Sharp tells us, before the Maine Supreme Court.

And what does David tell us about the legal arguments supporting either party?  Nothing.

Instead, we get a quotation from Nicole that is supposed to sum up the merits of the case.

I hope they understood how important it is for students to be able to go to school and get an education and have fun and make friends, and not have to worry about being bullied by students or the administration, and to be accepted for who they are.
Wow!  And here I was thinking this case was about what the law says about people who choose to use the bathroom of their own choice.

What bothers me most about the story is that David Sharp chose not to tell us about the legal arguments at stake.  Or maybe he didn't understand them.  What he knew is Court TV has taught Americans that the law is irrelevant; personal opinion is all that really matters in legal decisions. 

So, why should he, a mere Associated Press reporter, bother telling his reader the limitations the court faces?  It is far better to believe that this case is about having fun, making friends, and living in a world where you have to accept my impression of me.  As if we had all been transformed into unicorns.

It is shoddy reporting.  He had a great opportunity to inform his readers about an interesting area of the law and what courts can and cannot do.  Starting with: Nicole, if you want someone to guarantee your fun life, you will not find it from lawyers dressed in black dresses.

Frankly, I feel sorry for the school administrators.  Courts and lawmakers have put them in tough positions over the past five decades.  The list is long, but it includes discipline for bad behavior, religious references at school, search and seizure restrictions, and free speech issues.

This transgender debate is not going away.  I can guarantee it.

It was once an easy solution.  Depending on the plumbing God gave you, schools could classify you into two categories.  Done and done.

But objective standards are eroding.  No longer can administrators depend on such simple categories.  Now, they must make decisions on the subjective expectations of each individual.

If history is any guide, school administrators will default to an absolute position -- because it is safe.  Just as they have with the establishment and free exercise of religion clauses.  A mention of God in a public school causes pandemonium.

I can see the future.  Bathroom and locker room use will be a matter based on the sex a person claims to be.  And, if the entire football team decides en masse to be female, who is going to say them naught?

Then another Great Decider will conjure up the obvious solution.  Why are we wasting time on separate facilities?  We could save money and a lot of  time in court simply by having one giant bathroom and an even larger locker room.  Just like in Starship Troopers.

I also have another prediction, no matter how long this debate goes on, the press is going to pass along the legal story as if it is just another episode of a soap opera. 

According to David Sharp, we can stop watching Downton Abbey.  We are living it.  We just don't have the costumes or witty banter.

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