Transgender Privilege and the Americans with Disabilities Act

There is a lot behind the Obama administration’s diktat to public schools requiring them to treat transgender students in accord with claimed gender identity. The administration is pandering to radical LGBT activism, attempting to expand federal and especially executive power, continuing the left’s ongoing ideological war against American tradition, and cynically manipulating the Democratic base on behalf of Hillary Clinton. The Administration has preposterously tried to defend its coercive “guidance” to local school districts as analogous to federal enforcement operations during the civil rights struggles of the 1950s and 1960s. In fact, the rationales and means employed bear a closer resemblance to the use and misuse of the Americans with Disabilities Act (ADA) since its passage in 1990, by disability activist groups and wealthy and influential plaintiffs’ lawyers. It’s a case of the regulatory state simply picking and choosing rationales from smorgasbord of “rights” statutes to dictate to the people.

The Washington Post reports that mentally ill people are becoming more willing to open up about their problems to friends and co-workers. This tendency, for better or worse, can be traced in part to the LGBT movement’s emphasis on “outing,” and in particular the focus on transgender individuals who claim to be discriminated against. But while an otherwise stable man who loses his job and falls into depression may be regarded as mentally ill, we are told by the left and progressive psychologists that a man who believes he is in the wrong body and wants to cut off his genitals is mentally sound. As such, transgender individuals are not entitled to accommodation under the ADA, yet the administration’s efforts on their behalf are similar to those accorded the disabled. The ADA is a fine example of the adage that no good deed goes unpunished. While it has improved the lives of many disabled Americans, including many veterans, it has also been used by activists on the left as a tool to realize ideations of “social justice” and by their lawyerly enablers to enrich themselves. And now these ideations have been adopted by the LGBT community and the administration to privilege an odd, self-identified class of Americans called transgender people, who neither the administration nor the LGBT movement considers in any way disabled. The crux of the matter is the concept of privileges and stigma ingrained within the ADA. Under the ADA disabled people must be afforded accommodations that are reasonable, with the added caveat that the accommodations should not stigmatize. This ironically also may lead to privileges which do seem stigmatize, but which disabled people desire and the ADA requires. The most obvious example is preferential parking. Less obvious are many other accommodations that businesses are required to provide that in accommodating the disabled also provide some advantage. For example, sports arenas not only have to provide wheelchair accessible seating but make the experience like that of any member of the crowd, as for example when people rise to their feet. The wheelchair bound must be provided with a view in new construction that allows them to see over the heads of standing customers. On the other hand if you are not disabled and prefer to sit, you are forced to stand if you want to see the game when the people in front of you get to their feet. This in effect gives the wheelchair bound person a “better seat.” But because it is better than invoking a rule that says people can’t get up at all if a wheelchair bound person is around, and this accommodation doesn’t interfere or worsen the experience of other attendees (other than probably adding to the costs of construction and thus tickets) it’s not an something that most people notice or care about. And it allows disabled people to participate in the excitement almost exactly like everyone else in the stadium, which is decent and nice. However, in the view of disability activists and their lawyers, some accommodational privileges are not acceptable. For example, many years ago when I practiced law, and not too long after the ADA was passed, I represented a group of Burger King franchisees. As loyal Burger King customers know, they serve out of a single line, rather than the multiple but unpredictable lines at, say, McDonalds. A lot of customers like this practice because it is fairer -- you’re not going get your food long after the guy in the next line over because you got the slow server, or person in front of you can’t decide between a Whopper or a Whopper with cheese. The problem for wheelchair bound people is that they found it difficult to navigate the single line with its twists and turns. Burger King restaurants alleviated this problem by providing a small chained off area by the registers that a person in a wheelchair could easily access to place an order. This offended a group of disabled activist plaintiffs. They did not want to use the area reserved for them in the front because it “stigmatized” them. They demanded that either the company change its serving method, or widen all the serving lines so that they could be navigated by a person in a wheelchair. The incongruity that the disabled person likely arrived in a vehicle that parked in a special disabled space was explained away by it being a safety issue, so that stigma was acceptable. Burger King eventually settled. The rationale for allowing transgender students to use any bathroom they like is almost identical. It’s not that schools are unwilling to accommodate these kids, it’s that the kids (or their parents, or their advocates) don’t want any “stigma” attached to their accommodation. Transgender people are not physically disabled and ardently reject the idea of mental illness, therefore can’t sue under the ADA. Yet what they want is a privileged accommodation that doesn’t “stigmatize” them. But since transgender people are not disabled, there is no credible legal, logical, moral or biological reason that this self-identified class should be accorded a special privilege, i.e., using whatever bath or shower facility they prefer at the moment, when others cannot. The Obama administration’s actions do not protect the “rights” of anybody, but rather deny equal protection under the law to the vast majority of people in this country who identify with their biological gender. The transgendered are not disabled -- by their own account -- but use the moral and legal rationale of the disabled under the rubric of civil rights. And while ADA activists and their lawyers sometimes take advantage of that law in improper and unfair ways, it pales in comparison to what the Obama administration is doing for what has become an odd, and privileged American elite. For the left it is a zero sum game -- the more “rights” uncovered for this privileged group or that, the fewer you have.