Joseph R. Murray II

With marriage equality a reality and gay folks enjoying increased rights, social progressives are looking for the next cause du jour. The reaction generated by a South Dakota bill that would use biology, not identity, to determine bathroom usage, suggests transgender rights are next up.

According to the bill, which the legislature passed and sent to Gov. Dennis Daugaard for action by Tuesday, “every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex.”

What does “biological sex” mean? It is defined by the bill, and any middle schooler who passed science, as “the physical condition of being male or female as determined by a person’s chromosomes and anatomy as identified at birth.”

The bill, however, has many people in an uproar. The claim is that making a biological male student use a boys’ restroom when he identifies as a female is discrimination. Opponents further claim that the bill works to segregate, humiliate, and “bully” transgender students. "When does the discrimination stop? Is it just transgender? Or next year is it, 'I don't like blonde hair, blue eyes,' or 'I don't like Natives'?" asked state Sen. Troy Heinert. "We're going to tread down a very serious path."

Trans activists also fear that passage in South Dakota might embolden other state legislatures across the country. Though it died in committee, a Virginia bill sought to fine transgender students who fail to use their biological bathroom. A Wisconsin bill about locker rooms remains in a procedural purgatory. On the broader discrimination issue, North Carolina Gov. Pat McCrory has said the state legislature might step in to negate a transgender rights law passed by the Charlotte City Council.

Seeking to halt any momentum that might develop in the states, trans activists are trying to rally the LGBT community and hinting at federal lawsuits if Daugaard signs the South Dakota bill. The aim is to build on the major victories gays and lesbians won last year with the Supreme Court's Obergefell ruling that states must allow same-sex marriages.

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But is the plight of the trans person the same as the gay or lesbian person? Are gay and transgender folks one and the same, or is there a good cause to argue that “L” & “G” should drop the “T” from their movement?

Make no mistake, the gay community needs to file for divorce with the trans community. They are no longer working toward the same goals, and South Dakota is Exhibit A. The issues facing the transgender community today are wholly different and separate from those facing the gay community.

Unlike members of the trans community, who are working against their biology and trying to change who they are physically, gay or lesbian people are trying to be nobody but themselves. They are not seeking surgery or hormone treatments.They love the same gender; they don’t want to be a different gender.

That is a great distinction in the post-Obergefell world. In order to achieve marriage equality, gay people were not trying to upend the social construct of marriage; they were trying to obtain participation rights. Huge difference.

For centuries, marriage in the West had been between two people and premised on the notions of monogamy and stability. It is true that marriage had evolved over the years — from the movement away from arranged marriages to the acceptance of interracial marriages — and same-sex marriage was part of that evolution.

But can it be said that the drama surrounding Chaz Bono and Caitlyn Jenner will help sustain gay equality? Or would they embolden opponents of gay rights and undercut our progress?

Prior to Obergefell there was a frank discussion in the LGBT community as to whether gay rights and trans rights should remain wedded. The fear was that inclusion of trans rights would be asking too much of America. It is one thing to seek acceptance of two men saying "I do." It is another to ask Americans to accept boys sharing bathrooms and locker rooms with their daughters at school.

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This is not to say the trans community is wrong or misguided; it merely points out that trans folks should no longer be grouped with the larger cause of gay rights. Again, South Dakota is a perfect example.

I always tell my clients that kids make bad witnesses because of the uncertainty they bring. The same applies here. Proclamations about gender identity can be confused or premature at this age, and in any case schools should not be ground zero in addressing this issue. They are in the business of educating our children, not engaging in social experimentation. Teachers should stick to the three R’s, one of which is not reassignment.

If the gay community allows the trans community to co-opt its success and redefine the movement as one seeking to upend the human experience, it does so at its own peril.

Joseph R. Murray II is a lawyer, conservative commentator, former campaign official for Pat Buchanan, and author of Odd Man Out. He is also gay.

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