Since the unexpected—and, in certain circles, inconceivable—election of Donald Trump as President, federal courts have aggressively obstructed his executive orders on immigration, leading to complaints that activist judges are staging an insurrection or even a coup d’état against a President they consider illegitimate. I’ve indulged in a bit of this commentary myself, but—unfortunately—the problem is deeper and more serious than a few rogue judges resisting Trump’s policies. Much of the nation’s elites, and especially the legal class that dominates the judiciary, are in a bipartisan revolt against the bourgeois social order and the constitutional loyalties it underwrites. Trump’s election has merely exposed the extent of the longstanding (and widening) cultural chasm that divides the lumpenproletariat (Hillary’s “deplorables”) from the self-anointed elites.
The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex. Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.
Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively. New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.
The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act. Indeed, for the left on such matters it is always 1964.
But the analogy to racial discrimination of that era is misleading.