Is the Transgender Bathroom Directive Constitutional?



The transgender bathroom directive from President Obama is far from settled and, we believe, will end up in the Supreme Court.  A federal judge in Fort Worth recently put a hold on the directive on the grounds of improper vetting before the public.  In Virginia a federal appeals court told the school district of Gloucester County that it must comply with the President’s directive.  The U. S. Supreme Court blocked the appeals’ court order while the school board of Gloucester County prepares its appeal to the Supreme Court.  It is only a matter of time before the directive makes it to our nation’s highest court.

The issue is manifold.  The confluence of rights—some of which lead to different conclusions—around this single issue make it nearly intractable.  But before we attempt to untangle the question of rights we must first pause and consider the threat to the structural integrity of our federal structure that such a directive poses—specifically, separation of powers and federalism.  The executive branch is intended to enforce the laws passed by the legislative branch with the consent of the executive.  Executive orders can only be issued if authorized by Congress or the Constitution, as doing otherwise would place both legislative powers and executive powers in one office, thus violating the separation of powers (Youngstown Sheet & Tube v. Sawyer, 1952).  In an attempt to preserve federalism, the Supreme Court has begun limiting the national government’s involvement in the affairs of local schools after decades of getting involved in what had originally been an institution entirely under the direction of local governments (U.S. v. Lopez, 1995).  The bathroom directive in question violates tenets related to both separation of powers and federalism.

Tradition is often times more fundamental than formalized rights or procedures.  Education has traditionally been something done at the local level, controlled by those within the community it served.  The idea was that education ought to reflect the values, and perpetuate the skills and knowledge thought valuable, by the local community.  This federal directive usurps the local community’s ability to self-govern and upends the tradition of localized education that has been part of our national fabric since its inception.

Now to the issue of rights.

At issue here are five constitutional rights.  The transgender bathroom issue falls under the equal protection clause of the 14th Amendment, prohibiting discrimination.  But it also falls under other constitutional enumerations:

  1. The 1st Amendment protects “the right of the people peaceably to assemble.”  Women might wish to assemble as women in restrooms, locker rooms, and showers.
  2. The 4th Amendment, said Chief Justice Roberts, protects the right to privacy. Women might want privacy in restrooms, locker rooms, and showers.
  3. The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  This Amendment implies that both bathroom polices and education should remain local state issues since nowhere does the Constitution mention bathroom policies or even education.
  4. The 1st Amendment protects religious liberty. Some might find mixed sexes in restrooms, locker rooms, and showers a violation of their religious liberty.  Just now the federal government is being sued by the Becket Fund for Religious Liberty, representing the Franciscan Alliance, on the grounds that the transgender directive would force some doctors against their religious beliefs to perform gender transition procedures on children.

Moreover, the “necessary and proper” clause puts the making of “all laws” into the hands of Congress, not the Departments of Education or Justice.

The hold by the federal judge in Fort Worth could well end up in the 5th U.S. Circuit Court of Appeals.  Would that court side with the 14th Amendment in opposition to the enumerated rights in the 1st, 4th, and 10th Amendments?  It might not.  But whichever way the 5th Circuit might rule, the loser will likely take the case to the Supreme Court.

As elected trustees at a public college, we are by state law given the legal authority and fiduciary responsibility to set policy and to govern at Lone Star College.  The proposed transgender directive negates Texas law and rules as worthless our authority as elected trustees.

Public educational bodies nationwide, from elementary schools through highs schools through colleges and universities, are now scrambling to comply with the transgender directive, spending millions of unbudgeted dollars—all owing to a mere, unvetted five-page directive from the Department of Education and the Justice Department.  These two departments did not do their homework in what such a directive entails–in costs, proper vetting before the public, and likely constitutional violations.


Ronald L. Trowbridge, Ph. D

Trustee, Lone Star College System

Former chief of staff to Chief Justice Warren Burger

Kyle A. Scott, Ph. D

Trustee, Lone Star College System

Professor of Political Science, University of Houston

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