Guidance from the Departments of Justice and Education that public schools should allow transgender students to use bathrooms that match their gender identity, and a separate civil rights lawsuit against a North Carolina transgender law, firmly put the White House and the Democratic party at the forefront of transgender rights.
The two dramatic moves provoked cries of support from the left and fury from the right, which decried the actions as further examples of executive overreach and social engineering they see as typical of Obama’s rule.
“If President Obama thinks he can bully Texas schools into allowing men to have open access to girls in bathrooms, he better prepare for yet another legal fight,” Texas Attorney General Ken Paxton said.
Few saw a national fight over transgender rights emerging this summer.
Obama’s actions would have been far-fetched as recently as 2012, when he had still not formally backed same-sex marriage. But four years later, the White House and Democrats appear to be eager for the fight.
“It’s pretty clear there is a solid majority of Americans who want equal protection for trans people,” said Democratic strategist Brad Bannon. “I think [Obama] is trying to push the Republicans on the issue.”
Democratic presidential candidates Hillary Clinton and Bernie Sanders have both blasted the North Carolina law, which requires transgender people to use restrooms corresponding to the gender on their birth certificate.
“LGBT people should be protected from discrimination under the law—period,” Clinton wrote in a tweet when the measure passed in March.
Party strategists believe speaking out forcefully on the issue could aid Clinton, who has struggled to attract young voters who have flocked to her rival Sanders. They point to polls such as an April Reuters/Ipsos survey that showed twice as many Americans under 30 believe transgender people should use bathroom corresponding to their gender identity compared to people age 60 and older.
“If I was Hillary, the thing that I would be very concerned about is my position with millennials,” Bannon said. “They are very gung ho on any social issue you mention.”
GOP leaders are being forced to balance their vehement opposition to the Obama administration’s use of executive power while grappling with rapidly changing social norms surrounding LGBT rights.
Donald Trump who is known for his bombastic rhetoric against immigrants and Muslims, has taken a more measured tone. The presumptive presidential nominee declined to criticize the administration’s directive on Friday, saying the states should decide on the issue.
“I believe it should be states’ rights and I think the states should make the decision, they’re more capable of making the decision,” Trump said on ABC’s “Good Morning America.”
He said on NBC’s “Today” show in April that North Carolina should allow people to “use the bathroom they feel is appropriate” but he later walked back that statement.
LGBT-rights groups accused Trump of giving North Carolina a pass. But most Republicans went further than Trump, accusing the Obama administration of executive overreach.
North Carolina this week filed a lawsuit against the federal government, calling its stance a “radical reinterpretation” of the 1964 Civil Rights Act by suing the state over the bathroom law. Rep. Steve King (R-Iowa), who leads a House task force scrutinizing Obama’s use of executive power on issues like guns and immigration, called for hearings on its transgender directive. Texas Lt. Gov. Dan Patrick (R) intensified the fight on Friday, when he accused Obama of “blackmail.”
He said any implied threat to withhold federal aid could hurt poor students because a majority of education funding to the Lone Star State helps pay for free or subsidized lunches.
“He says he’s going to withhold funding if school do not follow the policy,” Patrick said of the president. “Well in Texas, he can keep his 30 pieces of silver. We will not yield to blackmail from the president of the United States.”
Obama spokesman Josh Earnest shot back that Patrick’s comments “underscore the risk of a right-wing radio host to a statewide office.”
He said the guidance was not an “enforcement action,” instead framing it a way to underscore existing law and offer “practical solutions” to school administrators who are trying to ensure student safety.
“This has very little to do with politics, except for our critics, who want to make this entirely about politics,” he said.
But issue won’t disappear from the political debate any time soon.
The pro-gay rights group Human Rights Campaign (HRC) counts almost 200 bills it considers “anti-LGBT” in more than 34 states this year. The debate could resurface at the Republican convention in July. Some GOP officials want to try and extract the party from the battle over gay rights by removing any mention of same-sex marriage from the party platform. But the Republican National Committee quietly approved a resolution in February endorsing state laws that restrict access to bathrooms and locker rooms to students of the matching “anatomical sex.”
A big part of the challenge for Republicans is how quickly attitudes on LGBT acceptance have changed in the Obama era. A recent CNN/ORC poll showed that almost six in ten Americans oppose laws like North Carolina’s. Jay Brown, communications director for HRC, acknowledged that attitudes have changed rapidly.
“There has been incredible growth and visibility of transgender people, which has made a really big difference and changed people’s understanding,” said Brown, who is transgender.
Brown said his organization’s polling in 2008 showed eight percent of Americans knew a transgender person. Now, that figure is at 35 percent.
“When you personally know somebody who is LGBT, you support laws that support LGBT equality,” he said. “It’s making an enormous difference in fighting for equal rights.”