If you want to pass a law that singles out a specific class of people based on their identity and disadvantages them under the law, you have to be smart about it. Don’t go shouting down your opponents, ranting about your religion, or parading in the streets with splenetic signs that might be illegal in Europe. That’s the old model! These days, you’re supposed to hire a respectable-sounding law firm—doesn’t the Alliance Defending Freedom sound definitely not hateful?—then dress up your bigotry in neutral garb. Discrimination becomes religious liberty. Prejudice becomes pluralism. Two plus two becomes five. And so on.
These lessons, alas, were lost on the passionate folks who attended a school board meeting in Horry County, South Carolina, on Monday—a meeting dominated by jeers and derision, punctuated by Christian hymns. As my colleague Laura Moser explained, the controversy centers around a trans high school senior. When the student began transitioning from female to male in seventh grade, school administrators agreed that he should use the men’s bathroom, in part because female students were uncomfortable with a male-presenting student using their facilities. The student, who has asked to remain anonymous, used the men’s bathroom for the next several years without incident. In his senior year, several teachers apparently embarked on a campaign to bar him from the men’s bathroom, demanding that he return to the women’s bathroom—or use a bathroom in the nurse’s office, far away from the main facilities. In January, a teacher covertly followed him around and witnessed him using the men’s room. The next day, the school suspended him.
Oddly enough, Monday’s school board meeting did not directly involve this student. Rather, the board met to decide whether to support a Virginia county school board’s appeal of the 4th Circuit’s recent ruling that anti-trans discrimination qualifies as “sex discrimination,” which is barred under Title IX of the Education Amendments of 1972. The board unanimously agreed to spend an undisclosed amount of money defending schools’ right to exclude trans students from their preferred bathroom. But one parent, Melanie Moore, rose to defend equal bathroom access for trans students. In response, Moore was heckled, harassed, shouted down (“Are you a believer in Christ Jesus?”), and ultimately drowned out as her opponents—basically everybody else in the room—sang “Jesus Loves Me.”
For conservative attorneys fighting to preserve public schools’ right to discriminate against trans students while continuing to receive federal funds, this video is an absolute nightmare. It depicts raw, unfiltered, explicit animosity toward trans students—the kind of animosity that constitutes an illegitimate legislative purpose under the Constitution’s Equal Protection Clause. As Justice Anthony Kennedy explained in Romer v. Evans, legislation motivated by “animosity toward the class of persons affected” offends basic precepts of constitutional equality. Any government action infected by “animus” toward a “targeted class” is thus constitutionally suspect.
When the Horry County School Board inevitably votes to ban trans students from shared bathrooms altogether in the very near future, you can bet that the ACLU will place Monday night’s meeting front and center in its lawsuit. Its recent complaints against anti-trans government actions have zeroed in on the animus issue, highlighting the stark parallels between anti-trans laws today and the now-invalidated anti-gay laws of yesteryear. As more cases emerge, ACLU-type litigators are sure to present judges with the growing body of evidence that anti-trans measures the country over are motivated by the same intolerant animus toward trans individuals. Horry County’s calamitous Monday night melee is a crystalline, courtroom-ready confirmation that anti-trans school boards are less concerned with mythical bathroom predators than with degrading trans students. And in that strange sense, Horry County’s concerned parents have delivered an unexpected gift to the trans rights movement.
