I will never forget the day many years ago when I first confronted the transgender issue (though we did not call it that then) in my law practice. I received a call from a school principal asking for advice in dealing with a kindergarten boy whose mother was dressing him up in girl’s clothing and insisting that he be allowed to use the girls’ restroom. I was shocked by the mother’s demands and advised the principal to deny her request. I might have used the word “duh” at some point in the conversation. I also advised the school to consider whether a report to Child Protective Services of possible child abuse was in order.
Of course we are talking about ancient, practically antediluvian, history here, and naturally I would not give a school the same advice today. Because some years afterward, the Colorado Civil Rights Division spoke to the issue. (Yes, I am talking about the same outfit that infamously ordered an evangelical Christian to use his artistic expression to celebrate an event contrary to his most fundamental beliefs, and when he balked said he was no different from someone defending the Holocaust. But I digress.)
In a 2013 case involving a another kindergarten boy pretending to be a girl, the Division laid down the law in Colorado, and the law the Division laid down was not the least bit subtle. But what it lacked in subtlety, it made up for in clarity. No lawyer ever has to guess about what the Division will require Colorado public schools to do in these cases – which is any damn thing the transgender student demands. A boy wants to come to school in dresses and makeup. You have to let him. He wants to use the girls’ restroom. You have to let him. You can offer him a gender-neutral option, but if he rejects it you have to allow him to use the restroom of his choice.
Nowadays the issue continues to come up from time to time, and the pattern is usually the same. 1. Panicked principal calls. 2. I tell him the law is very clear and what he must do to comply with it. 3. Panicked principal goes through the stages of grief — denial, anger, bargaining, depression and, finally, acceptance. 4. No longer panicked principal (bewildered, certainly, but not panicked) goes forth and deals with the matter.
But Barry, aren’t you cooperating with evil when you advise schools to allow boys to use the girls’ restroom? No, for the simple reason that I do not advise schools to allow boys to use the girls’ restroom. I tell schools that Colorado law requires them to allow boys to use the girls’ restroom — a subtle but very important distinction. I did not enact the law. I do not agree with the law. But I am obliged to tell the schools what the law is.
What about the rights of all of the girls and their parents who don’t want to use the restroom with a boy? That’s another part of Colorado law that is very clear — the Colorado Civil Rights Division does not give a damn about the rights of those girls and their parents.
As far as I know, all of my school clients that have been confronted with the issue have made their girls restrooms available to these boys. And they accommodate the girls who object by allowing them to use a gender-neutral restroom (usually the staff restroom), which can lead to the absurd – but legal – result of a single boy using the multi-stall girls room, while a line of girls waits outside the single seat staff restroom.
This has been the status quo since 2013, but recently I have sensed that the progressives, having won the bathroom battle (in Colorado if not in other states), are ready to take the fight to the next level, and several months ago I sat down with some principals to discuss the issue. I reminded them that the law is clear when it comes to accommodating these students. You may not like it, but your duty under the law is unambiguous. But, said I, you may not have that luxury for long, because I predict that in the very near future you are going to become combatants in the pronoun wars, and that is going to be a very difficult situation. You may not like capitulating to a boy’s demand to use the girls restroom, but at least you can do that while accommodating the rights and beliefs of the girls and their parents who don’t want to use the bathroom with him. It is difficult but possible. But what is going to happen when that boy insists that his evangelical Christian teacher refer to him using feminine pronouns and the teacher refuses?
Certainly, under Colorado law the boy has a right to pretend to be a girl at school. And he has a right to require the school to go along with his pretense at least to a certain degree. But the evangelical Christian teacher also has rights. She has the right to her sincerely held religious beliefs, and under the so-called “compelled expression” cases she has a right to be free from the government requiring her to speak contrary to her deeply-held beliefs. In West Virginia State Board of Education v. Barnette, the Supreme Court put it this way:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
The compelled speech doctrine means that the government cannot compel you to, for example, salute the flag, or recite the pledge, or affix the phrase “live free or die” to your car (an actual Supreme Court case).
When a boy says he is a girl, that is a lie. To be sure, under Colorado law he is entitled to tell that lie, and he is entitled to require the school to accommodate that lie. But will the government require others to repeat his lie – which they will be doing implicitly every time they refer to him with a feminine pronoun?
The clash that is coming up and will soon be decided is which of these rights will prevail, because surely they are mutually exclusive. One or the other is going to have to give. Will the boy’s right to lie prevail over the teacher’s right to be free from being compelled to affirm the lie? My best guess is that the teacher’s right to be free from compelled speech will prevail. Consider that quote from West Virginia State Board of Education v. Barnette again. “If there is any fixed star in our constitutional constellation . . .” It sure seems like the right to be free from government-compelled expression is among the most fundamental of constitutional rights.
But I could be wrong. After all, progressives often treat other people’s right to be free from compelled speech as a mere nuisance not worthy of consideration. To cite just one example, the Masterpiece Cakeshop case is at bottom about whether an artist can be compelled to express views contrary to his most basic beliefs. And we all know where the progressives in the Colorado Civil Rights Division came out on that question.
It turns out I was prescient.
A couple of weeks ago in a case out of West Point, Virginia. A local school board considered the clash between the transgender student’s right to lie and a teacher’s right to be free from compelled expression. And they came down on the side of the student. The case is heading for the federal courts, and I predict the teacher will ultimately win. But that result is far from certain.
In the meantime, Peter Vlaming is my new hero. “Let the lie come into the world, let it even triumph. But not through me,” Alexander Solzhenitsyn wrote in Cancer Ward. Vlaming is the teacher in the Virginia case. He lived
Solzhenitsyn’s dictum in real time, when he refused to knuckle under to the tyranny of the progressives who dominated the school board. And he suffered for it. Solzhenitsyn would not have been surprised. Indeed, he predicted this very thing, because he, of all people, knew that refusing to participate in lies would be costly. In Live Not by Lies he wrote:
And the simplest and most accessible key to our self-neglected liberation lies right here: Personal non-participation in lies. Though lies conceal everything, though lies embrace everything, we will be obstinate in this smallest of matters: Let them embrace everything, but not with any help from me . . .
Some, at first, will lose their jobs. For young people who want to live with truth, this will, in the beginning, complicate their young lives very much, because the required recitations are stuffed with lies, and it is necessary to make a choice.
But there are no loopholes for anybody who wants to be honest: On any given day any one of us will be confronted with at least one of the above-mentioned choices even in the most secure of the technical sciences. Either truth or falsehood: Toward spiritual independence, or toward spiritual servitude.
And he who is not sufficiently courageous even to defend his soul — don’t let him be proud of his “progressive” views, and don’t let him boast that he is an academician or a people’s artist, a merited figure, or a general –let him say to himself: I am in the herd, and a coward. It’s all the same to me as long as I’m fed and warm. . . .
You say it will not be easy? But it will be easiest of all possible resources. It will not be an easy choice for a body, but it is only one for a soul. No, it is not an easy path. But there are already people, even dozens of them, who over the years have maintained all these points and live by the truth.
So you will not be the first to take this path, but will join those who have already taken it. This path will be easier and shorter for all of us if we take it by mutual efforts and in close rank. If there are thousands of us, they will not be able to do anything with us. If there are tens of thousands of us, then we would not even recognize our country.
If we are too frightened, then we should stop complaining that someone is suffocating us. We ourselves are doing it. Let us then bow down even more, let us wait, and our brothers the biologists will help to bring nearer the day when they are able to read our thoughts are worthless and hopeless.
And if we get cold feet, even taking this step, then we are worthless and hopeless, and the scorn of Pushkin should be directed to us:
“Why should cattle have the gifts of freedom?
“Their heritage from generation to generation is the belled yoke and the lash.”
*In Wooley v. Maynard, the Supreme Court struck down a New Hampshire law requiring all cars to display the state motto (“live free or die”) on their license plate.