Transgender Pride flag at a Trans Solidarity Rally in Washington D.C. Photo by Ted Eytan.
As a citizen of these United States, I have a question for the federal government: Who am I?
Okay, make that two questions. I also need to know who gets to decide - you or me.
I realize the federal government is a big, amorphous organization. Ordinarily when I have a question, I send it to a specific place, such as the Internal Revenue Service. But in this case I can’t do that, because a lot of parts of the federal government seem to have an opinion on this topic and, confusingly, they do not have the same view.
The Education Department, for example, seems to believe very strongly that we decide for ourselves who we are. I was a man as I typed these words. But in the eyes of the Education Department, if I came to view myself as a woman while attending a school that receives federal funds, then as far as the school is concerned, I am a woman and I should be treated accordingly.
I do not in any way mean to make light of transgender people and the complex, difficult situations in which they often find themselves. All of us are entitled to feel comfortable inside our own skins. All of us want to be accepted for who we are, much of which is determined by who we believe ourselves to be. There was almost no attention to transgender issues when I was growing up, or even in my first decades of adulthood, so my awareness of transgender people has lagged that of others. But like most Americans, I am trying.
A school district in Palatine, Illinois, is trying too. A transgender high school student there - assigned male at birth but identifying as female - plays on girls’ sports teams and uses female restroom facilities, apparently without controversy. But this student, who still has at least some male physical characteristics, has been asked to change and shower separately from other girls who use the girls’ locker room. This policy apparently comes at the behest of some of the other girls, and the transgender student has reportedly said she might even prefer to change in privacy. (So would many high schoolers, regardless of gender identity.)
But the student does not like being forced to do so, and the Education Department finds such compulsion completely intolerable. If the student says she is a girl, according to the Education Department, then she is a girl for each and every purpose, including changing with the other girls. Therefore any difference in treatment violates antidiscrimination laws.
Hold that thought.
Suppose the same student graduates in a couple of years and decides to start a company that works on federally funded highway projects. The federal Transportation Department has a program that provides contracting preferences for “Disadvantaged Business Enterprises,” the definition of which includes companies owned and run by women. To qualify for this preference, the former student would have to have her company certified by the state or local agency receiving the federal funds. The certifiers make the determination based on on-site visits and personal interviews, among other factors, according to the Transportation Department.
But what happens when the certifiers expect to meet a female business owner and see someone who looks more like a man, or who has body parts typically assumed to indicate maleness? If the business owner doesn’t look like a woman to the certifiers, do they call the feds? If so, which feds?
This is serious business, because the Justice Department - which the Education Department is threatening to turn loose on that Palatine school district - aggressively prosecutes fraud in the DBE program. If the government decided the business owner’s gender identity was assumed in order to secure business advantages, Justice would almost certainly pursue the matter. So the same lawyers who argued that this student was female while in high school might contend that she committed the crime of fraudulently claiming to be female in the business world in order to secure federal contracts.
To further confuse things, I suspect that some of the same people who believe the Education Department is correct in its view of the transgender student were upset at the revelation that Rachel Dolezal, former head of the Spokane chapter of the NAACP, was actually not black - or at least, not in the eyes of her parents. Ms. Dolezal said she identified as black despite her parents’ ethnicity, but she resigned from her position after the controversy broke out. Many of her critics claimed that no matter how much she sympathized or believed she understood the black experience in America, she simply could not choose her own race.
Yet we currently have in office the first black president. His mother was white and his father, a Kenyan, had no more history of American slavery in his family than I do. Is our race determined by our self-identification, by our genes and skin tone, or by our ancestors’ experience along with our own?
One of my favorite films is “The Commitments,” which was released in 1991. It tells the story of a hardscrabble Irish band that makes a name for itself playing American soul music. This strategy is the brainchild of the band’s creator and manager, Jimmy Rabbitte, who has to persuade skeptical performers.
“The Irish are the blacks of Europe,” he tells his doubtful charges. “And Dubliners are the blacks of Ireland. And Northside Dubliners are the blacks of Dublin. So say it once and say it loud, I’m black and I’m proud.”
Race is complicated and sensitive, especially in America. Some coverage of Dolezal’s story used the word “transracial,” though that drew the anger of the group who originally used that term: individuals of one race adopted by parents of another. And the long history of “passing” in order to escape oppression or even danger has made self-identification fraught where race and ethnicity are concerned. Yet while cultural and societal consequences remain, I think few Americans would be in favor of the government demanding proof of membership to a racial or ethnic group beyond a person’s word, especially considering the growing multiracial population in this country.
There are some social conservatives who look at my ilk and don’t care much for what they see in socially liberal Republicans like me. To them, I am a RINO - a Republican in name only. And then, since I come from the deep-blue Northeast, I get it from friends and even from family. “You’re not a Republican,” they sometimes tell me, even though I insist I am, and my Florida voter registration backs me up. I don’t take offense, because what they are really saying is that they don’t like Republicans but they like me, and they just don’t feel like bothering to resolve the conflict. But imagine if the government put its two cents in when I showed up to vote in a primary. “You may claim to be a Republican, but we have some doubts,” would be patently absurd coming from a government institution; the only person who determines whether I am a Republican for the government’s purposes is me, as evidenced by the choice I made when I registered to vote. If the party itself chose to limit its membership and exclude me, however, that would be its right under the Constitution’s protections for freedom of association.
If we believe in self-identification, then it is hard to see how identity-based government preferences can stand. The Supreme Court may very well decide this year that they can’t, when it revisits the topic of affirmative action in college admissions. Yet even if the government preferences remain in place, it seems clear that government agencies need to come to a consensus on who determines a citizen’s identity.
We are who and what we believe we are. As citizens, we establish our government; it does not establish us.