Sunday, May 22, 2016

Dark Clouds and Bathroom Bills

David Gergen, CNN senior political analyst and co-director of the Center for Public Leadership at Harvard's Kennedy School of Government, gave a commencement speech at Elon University this weekend. You can read about it and follow a link to watch it here. As a North Carolina native, he's reacting to what he perceives as the undoing of progress that his home state has made, particularly with respect to H.B. 2, the Bathroom Bill.

The whole speech is worth your attention, but I would like to focus on a few excerpts. The first one is this:

Then suddenly, without warning, dark clouds arrived. The moderation that characterized our state – the belief among Republicans and Democrats that we are all in this together – gave way to a new, angrier, extremist politics.

I think the first statement in this excerpt is almost always false. Dark clouds take a long time to arrive. The reasons that their arrival appears so suddenly to Gergen are that he's observing from afar, he is happy with the changes that he describes as progress, and the ruling coalition (of self-styled moderates) that is driving the changes appears to be stable. The second statement is closer to true -- the new politics are definitely angrier. Whether they are extreme often depends on where you are sitting.

Consider as well this excerpt from Gergen's admonition to the graduates to engage in public policy:

You will find that many will disagree with you, just as many here will have disagreed with me. But don't let your disagreements make them your enemies. Find common ground, work hard to respect the views of others.

I confess I wasn't following the evolution of transgender rights in North Carolina before this spring. But I suspect that many of the proponents of H.B. 2 would claim that this is exactly what did not happen in Charlotte when it passed Ordinance 7056. Judge for yourself about the public reaction to the people who disagreed with this ordinance or who support H.B. 2. Are the opponents of H.B. 2 not treating them like enemies? Are they working hard to respect the views of others? Empathy is very hard to come by here, on both sides of the issue.

Gergen's admonition is the right advice to us all. But I don't think it is clear from his statement that we can only heed his admonition if we work this out in the legislature -- not the executive branch (through, for example, the 2014 guidance from the Department of Education reinterpret Title IX to cover an issue like transgender rights) or the judicial branch, where the courts will now be called on to resolve this. 

For legislation, I think a good historical example is the Americans with Disabilities Act of 1990, and, in particular, Title III on Public Accommodations. The public remedy here is to have single-occupancy bathrooms, as they don't require an occupant to pick a gender in order to know which one to use. They would look like family restrooms you see in public facilities. I would suggest three different remedies. First, as with the ADA, new construction of public facilities should be required to have a requisite number of single-occupancy bathrooms. Second, existing facilities that are sufficiently large and sufficiently public (e.g. a large office building with multiple floors that each have multiple-occupancy, single-sex restrooms on each floor) is to convert some existing facilities to non-gender-specific restrooms. Third, existing facilities that are not large or not very public (e.g. a small inn) should have a much longer time to convert their facilities or more latitude in the ways that they comply.

But passing something like the Americans with Disabilities Act -- one of the last, solid, bipartisan pieces of legislation -- requires a lot of work, including years of education and deliberation to find ways to balance competing concerns. I hope we still have that in us as a democracy.

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