DOJ Wants to Scare Schools, Businesses and More Into Trans Bathroom Ban

A threat like this is a bet, one waged on the expectation that Americans, acting out of fear, will fall in line.

Pam Bondi - CC License

A July 29 memo from Attorney General Pam Bondi has declared that “all Americans must be treated equally.”

Of course, the word “equal” when uttered by a Trump official comes with the presumption that they actually mean “unequal,” and it's usually the precursor to another decree meant to strip Americans of their rights.

One only needs to read a little further to get to the kicker. Bondi’s “guidance” warns any entity receiving federal funds—potentially including hospitals, schools, non-profits, museums, and other contracting businesses—against accommodating trans people who simply need to use “bathrooms, showers, locker rooms, or dormitories,” as well as trans people competing in athletic competitions. The memo leads to more questions than answers when it comes to how institutions—and which institutions—could be harassed under the DOJ. It could be used to scare privately-owned businesses that receive federal funding, such as major airlines and tech companies, into such bans.

Bondi admits the memo’s “suggestions” constitute “segregation,” and that this practice is only allowed under “heightened scrutiny,” a legal doctrine “requiring an exceedingly persuasive justification and substantial relation to an important governmental objective.” Bondi further argues that anti-trans sentiments rise to this occasion:

When it comes to most any other opportunity for women, however, Bondi urges relevant actors to “avoid segregating participants into groups based on race, sex, or other protected characteristics,” such as programs that fund and uplift women-owned businesses. Initiatives like these, Bondi said, could be construed as unlawful and discriminatory.

But a deeper read reveals something even more sinister, or perhaps, more hopeful. The nine-page document emphasizes, no fewer than three times, that it is “non-binding” in nature.

Instead of an iron-clad order, Bondi writes that these are “suggestions to help entities comply with federal antidiscrimination laws and avoid legal pitfalls.”

“These are not mandatory requirements but rather practical recommendations to minimize the risk of violations,” the memo reads.

Make no mistake: The Trump Administration has already directly attacked trans rights via executive orders and discriminatory directives, which have done everything from redefining sex in law to banning trans people from the military. But time and time again, legal resistance has challenged these policies.

Sometimes—and, as Trump stacks the judiciary with more appointees, perhaps a growing amount of the time—these lawsuits end with the erosion of trans rights, as was the case in the devastating Skrmetti decision. But sometimes, the courts produce a decision that makes it harder for the Trump Administration to attack Americans’ civil liberties, such as the Montana court’s repeated rulings upholding its trans residents’ right to privacy. Other times it leads to injunctions (which still exist, despite a recent SCOTUS ruling restricting their scope) that halt the policies from being implemented before it can take effect. All of these legal fights cost the government a great deal of time and money to litigate.

That’s possibly why Bondi goes through such great pains to emphasize that this memo is a list of “suggestions.” If it’s an order, it can be challenged in court. A threat like this is a bet, one waged on the expectation that Americans, acting out of fear, will fall in line.

None of this means we shouldn’t be afraid, shouldn’t take these threats seriously, or should wait around until the next election in hopes that a new face in the Oval Office will save us. It does mean Trump’s power is derived from the consent of—and increasingly, the fears of—the people.

Ezra Klein—a prodigious contrarian employed by the New York Times, who has more or less reduced trans people to a political liability—once made a good point on the ways the Trump Administration uses these kinds of threats to further the authoritarian regime, following his second inauguration.

“We talk about America’s system of government as if it is a solid thing, bound by the Constitution and institutions,” Klein said. “But much of it is just a pile of norms in a trench coat.”

All of this is to say that Bondi is begging for us to call her bluff. These clandestine bathroom policies are near impossible to enforce without deputizing everyone a member of the “Genital Observation Police.” This does not mean we will be free from harm and suffering under this Administration, but if we resist complying in advance, we hold more power than they want us to know we have.