As trustees of a public institution, the Lone Star College System, we have serious questions about the implementation of the proposed transgender policy of the Obama administration. This regulation is just that—policy– and does not carry the force of law.
We raise, speaking only for ourselves, three issues: one, constitutionality; two, the meaning of the policy; three, cost of implementation.
As elected trustees in Texas 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 policy negates Texas law and rules as worthless our authority as elected trustees.
This raises the broader question of federalism and the proper powers exercised by the central government vis-à-vis the states and local governing units. The 10th Amendment of the U.S. Constitution 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.’’ The Amendment implies that bathroom policies and education should remain local issues since nowhere in the Constitution does it mention either.
The states and local governing units are the proper place for education governance. Decisions about education should be made by those who are more familiar with the culture of the community. The desires of the parents, students and the community with respect to education should be respected and not delegated to politicians far removed from the community.
Transgender policy is nowhere explicit in the Constitution but could fall under the equal protection clause of the 14th Amendment. But if this clause is read too broadly the government could control virtually everything in our lives by that equal protection clause. All Americans, for example, could be forced to make an equal income. This is specifically what Thomas Jefferson worried about when he wrote, “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.”
Furthermore, the 14th Amendment, as is consistent with the necessary and proper clause in Article I, Section 8 of the Constitution, provides Congress with the authority to make laws consistent with the Amendment, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
National control of education, even through Congress, is a usurpation of state and local authority, but the enforcement of rights is not so necessarily as long as it is done so in a manner consistent with the letter of the Constitution, which provides for such measures to be taken up by Congress where the will of local communities is expressed by Senators and Representatives in the House.
The actual meaning of the transgender policy?
No one, including government officials, knows what the new proposed transgender policy means or how it would affect society as the terms, applications, and costs are left undefined. We are reminded of the phrase in Hamlet that we “might fly to ills we know not of.’’ The Obama administration cannot require that the public follow a general, vague policy whose terms, applications, and costs have not been defined. The government needs to do its homework. To make a change that is a radical departure from the status quo we must understand the manner and extent of the problem and harm being done so that we can adequately assess all viable options and move forward prudently.
Federally mandated costs to public bodies:
It is certain that with a change in bathroom, locker room, shower room policy there would need to be some infrastructure alterations in these facilities to assuage the concerns of students, parents, and community leaders. These alterations would certainly be shouldered by the state and local governing bodies. As stewards of public funds this is particularly concerning as we are faced with rising costs in the face of potentially lower state contribution levels.
Budgets reflect choices and those choices should reflect the values and will of the community. If budgets have to be redirected to force compliance with directives issued from a far off politician instead, the community’s voice is lost.
Ronald L. Trowbridge, Ph. D.
Kyle A. Scott, Ph. D.
Trustees, Lone Star College System