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Many years ago the educational program Schoolhouse Rock! was a mainstay in my third-grade classroom. I remember watching in awe as I got a three-minute civics lesson in the show’s “I’m Just a Bill” segment—a succinct explanation of the passage of laws in our great nation. As early as that day, understanding laws—and the legal process—has always piqued my curiosity. My scholastic career has never veered too far away from this legal arc. I learned about checks and balances in middle school, studied political science in college, and obtained my law degree to help satiate my curiosity.

My favorite part of the “I’m Just a Bill” segment occurs when a boy commends the Bill for its patience. He states, “Geez Bill, you sure have a lot of patience and courage.” To which the Bill replies, “Well, I got this far. When I started I wasn’t a bill. I was just an idea.”

Patience and Process

Even as a third grader, I discovered one thing about our nation: legislation requires patience. It takes time for ideas to become laws. And there’s a reason for that. Conversations occur with constituents most affected by proposed legislation. Committees meet to discuss all of the public policy implications of a law’s passage. To some degree, when it comes to setting legal precedent, patience is built into the fabric of our nation. But what happens when, implicitly, an idea is accompanied by the force of the law?

Look no further than a letter issued by the Department of Justice (DOJ) today. In it, the federal government declared there was no time for patience. The DOJ letter sent a directive to all public school districts in the country requiring that schools allow transgender students to use bathrooms matching their gender identity. The letter itself does not have the force of the law, but there is a cost for non-compliance. What is that cost? A loss of federal funding for offending public schools or the threat of a federal lawsuit. Today, in essence, we moved from an idea to law without one new piece of federal legislation. Though “bathroom bills” have passed and failed at the state level, not one federal congressional committee has met on this issue. Notwithstanding that fact, the DOJ found it necessary to issue its guidance letter today.

The Scope of the DOJ’s Power

The DOJ is a federal agency that exists in part to “enforce the law and defend the interests of the United States according to the law”. Title IX of the Education Amendments—first introduced to Congress in 1972—states in its relevant part that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Since Title IX is federal legislation, the DOJ is tasked with its enforcement. Granted, the DOJ issued guidelines in 2014 stating that transgender students are protected from sex-based discrimination under Title IX. And the Department of Justice’s letter makes it clear that “federal agencies treat a person’s gender identity as the student’s sex for the purposes of enforcing Title IX”. But it appears the DOJ has stepped out of its role of enforcer and ascended the steps of the Capitol to take a legislative seat. After reading the letter, one would think the DOJ exists to create new legal precedent without concern for our country’s legal process.

I get it. President Obama has just six months left in office. Patience is the last thing the Obama Administration wants to hear. Everything that has transpired over the past week shows an impatient administration. Earlier this week, the Justice Department filed a civil rights lawsuit against the state of North Carolina over its “bathroom bill”—a bill that bans transgender people from using bathrooms that don’t match the gender on their birth certificates. Today’s DOJ letter further demonstrates a federal full-court press to accelerate the transgender conversation. True, the DOJ letter serves as “guidance” to public schools across our nation. But guidance with the threat of consequences has unspoken legal force. How many public schools that refuse to comply can afford to lose federal funding or defend a lengthy government-led civil lawsuit? I think the federal government owes it to our nation to practice the patience we generally demonstrate when implementing sweeping policy changes.

Theological and Social Implications

The Department of Justice letter is said to be a response to a “growing chorus of educators, parents, and students around the country” wanting to know how to treat transgender students. In a separate letter, analyzing legal implications, the DOJ states: “Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from…the person’s sex assigned at birth.” And in some instances, identities change over the course of months. In discussing emerging transgender practices at school, the Department of Education notes: “Some students transition over a school break, such as summer break.” So in essence, a five-year-old boy could identify as a boy in May and a girl in October. With the parent’s support, it’s his choice.

This new joint guidance from the DOJ and DOE could have sweeping theological and social implications. First, allowing children to choose their gender identity flies in the face of our Creator’s sovereign design. It gives us the god-like capability to re-assign our gender, despite the fact that God creates us distinctly male and female (Genesis 1:27). I’ll leave biology and science arguments to others more capable of dealing with those nuances, but suffice it to say that the very idea of changing one’s gender identity on a whim is idolatrous at its core. Socially, there are many already expressed concerns regarding bathroom safety and the next area of self-identifying ambiguity outside of the realm of gender issues (e.g. 15 year olds self-identifying as 21 year olds old enough to drink or 30 year old men who self-identify as 15 year olds who want to sleep with 15 year old girls). In creating ambiguity here, I fear we may have opened the door for ambiguity in other areas.

Appropriating Our Story?

As an African-American jurist trained at Howard University’s School of Law, I’m keenly aware of the civil rights issues raised here. Howard Law dean, Charles Hamilton Houston, helped lead a team of strategists and lawyers in securing a favorable outcome for African-Americans in the Brown vs. Board of Education decision. But it took years of hard work and dedication from lawyers and legislatures to implement change. I’m where I am today because of the hard work and dedication of Houston and others to secure equal rights for African-Americans.

In the same way, I applaud the passage of the 1972 Title IX legislation. It opened doors for women in high school and college athletics and helped move our nation forward. My concern is our culture’s appropriation of the African-American struggle for civil rights in America. You can’t copy a narrative of pain and death filled with water hoses, attack dogs, and ropes and paste it onto a narrative of self-identification. Medgar Evers didn’t need to self-identify as African American. He WAS African American. And he lost his life for that reason alone.

Even for those who disagree with or are offended by my assessment, Evers own words might be helpful: “You can kill a man, but you can’t kill an idea.” Reminds me of my friend Bill’s words about his own process: “When I started, I wasn’t a bill. I was just an idea.” My only plea in the midst of our current political storm is for all parties—including our federal government—to honor the legal process I’ve come to appreciate about our nation.

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