In kowtowing to the baser instincts of social conservativism, Donald Trump took another sledge hammer to basic human rights this week. With the stroke of a pen, he rescinded the federal government’s position that transgender students should be allowed to use school bathrooms and locker rooms based on their gender identity. For many on the right, still smarting over their smashing gay marriage defeat, this was some sort of bizarre solace, a token illusion that their revered life style of the 1950s is still in place. For Trump, who supported LGBT rights in a prior life, the move gave him a much needed fix of the fuel that keeps him going: adulation and worship by his base. Sad, isn’t it, that grown adults can feel so good by forcing kids who look, dress, act and feel like boys to use the girls’ restroom (and vice versa)?
Now if Trump had been the straight shooting, down-to-earth non-politician his rally crowds think he is, he would have said something like this: “Frankly, I couldn’t care less what bathroom people use. Caitlyn Jenner is a fantastic woman and a dear personal friend. I’ve told her she can use the Ladies’ Room of her choice at Mar-a-Lago anytime. But many of the wonderful people who voted for me really hate this whole transgender thing, and I just have to throw them a bone because they love me so much.”
He didn’t say that, of course. Instead, like the politicians he so despises, Trump put the oldest spin in the book on his latest human rights assault by declaring, “This is not a federal matter. This is for the states to decide.” Press Secretary Sean Spicer was ready with the talking point: “We believe this is a states’ rights issue.” They both uttered the words like they thought they had just come up with the idea.”
Quite the contrary. This 45th president, who fancies himself as an outsider with a mandate to drain the political swamp, tapped into an argument that is drenched in the swamp’s DNA, dating all the way back to 1776. Every politician who ever opposed human rights did so by wrapping themselves in the flag of “states’ rights.”
Shortly after the American Revolution, the founding fathers worked up a constitution. The original draft banned slavery in the new union of 13 colonies. Virginia, however, insisted that any prohibition on slave ownership by this neophyte federal government was a deal breaker. The slave ban was dropped and the states’ rights gambit was born. It has been a goiter on the body politic ever since, heralding a civil war, periodic threats of succession and an ongoing lame, clichéd excuse for withholding basic human rights.
It doesn’t matter whether the battle is over slavery, whites-only lunch counters, gay marriage or transgender bathroom use. Politicians on the national stage rarely come right out and rave about how cool it is to discriminate. “States’ rights” is their rhetorical stand-in for “discrimination.” It’s more noble sounding to pound your chest in support of the rights of states to run their own shows than it is to advocate against those seeking equality.
In his first inaugural speech as governor of Alabama in 1963, George Wallace brought the local house down with these words of inspiration, “I say segregation now, segregation tomorrow, segregation forever.” A year later, as a candidate for president, Wallace said the same thing with different words: “Integration is a matter to be decided by each state. The states must determine if they feel it is of benefit to both races.”
And the rest, as they say, is history. Blacks would still be drinking from segregated water fountains in Alabama, if they had to wait for the white folks there to see the benefit of integration. That is the essence of “states’ rights.” Congress took the states’ right to discriminate away from them in 1964 when it passed the Civil Rights Act and made equality a federal right.
Eight years later, Congress expanded that right by passing a law prohibiting educational institutions receiving federal funds from discriminating on the basis of sex. That statute was the basis for the Obama administration’s advisory warning to schools that banning students from using restrooms consistent with their gender identity would constitute illegal discrimination.
Trump, in preparing for a presidential run in 2000, called for federal legislation to shield the LGBT community from discrimination. In his latest incarnation, however, the president trotted out the old, worn battle cry of states’ rights. That leaves transgender kids like Gavin Grimm, a Virginia teen, with the painful indignity of using a girl’s bathroom while looking every bit like a teenage boy straight out of central casting. That’s what it means to leave human rights decisions in the hands of the states.
The question of federal versus state control of human rights split the Democratic Party for years. Eventually, the party lost southern Democrats to the Republicans. The battle was just warming up in 1948 as the Democratic National Convention in Philadelphia debated the merits of a federal civil rights law. A young Minneapolis mayor by the name of Hubert H. Humphrey rose to the microphone to support the platform plank in a speech many historians view as one of the best examples of political oratory. Here’s what Humphrey told his fellow delegates:
“To those who say that this civil rights program is an infringement on states’ rights, I say this: The time has arrived in America for the Democratic Party to get out of the shadow of states’ rights and to walk forthrightly into the bright sunshine of human rights.”
That was 1948. It is now way past time for us to escape from that shadow, once and for all. We need that sunshine of human rights. We need it for everyone. And we need it now.