Bill Straub: Bevin’s dubious decision to enter lawsuit could prove both divisive and costly

WASHINGTON – The Can’t Leave Well Enough Alone Award goes once again this week to Kentucky Gov. Matt Bevin. Judges are convinced the Republican from Louisville will so dominate the selection process from here until the end of his term that they’re simply going to name it after him.

Bevin’s accomplishment this week, of course, is sticking his nose in the debate over the rights of transgender students to access the restrooms of their choice at school.

After initially characterizing the debate as nonsense and expressing no interest in “worrying about who uses which bathroom in the public schools,” the governor has hoisted the commonwealth on his back and entered a federal lawsuit, initiated by several other notoriously misguided states, seeking to nullify a White House directive that called on public schools to permit transgender students to use bathrooms that align with their own gender identity.

According to the governor, the directive represents an “absurd federal overreach into a local issue.’’ What’s more, eloquently displaying his expertise with the U.S. Constitution, he asserts that under the Tenth Amendment “the federal government has no authority to interfere in local school districts’ bathroom policies.’’

Really? Jimmy Madison wrote that? Wow, he sure got down to the nitty-gritty writing that Bill of Rights, didn’t he?

Bevin, as is his wont, blustered further, calling on the commonwealth’s school districts to ignore the policy advocated by President Obama.

“We’re not going to do it,” Bevin said. “We’re not going to be any party to that.’’

It bears noting at this juncture that the policy issued by the Obama administration was simply intended to inform those local school districts that receive federal funds for the task of filling the heads of truth-seeking youth with mush where the federal government stands on the issue. Under Title IX of the Education Amendments of 1972, “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.’’

So, under the clear reading of the law, discriminating against transgender students is verboten. Unsaid, of course, is those school districts who fail to follow along with the administration’s reading face the possibility of losing their federal largesse.

Bevin avers that the restroom rights of transgender students is a local matter, knowing full well that it’s rather a matter of sexual discrimination that certainly renders it an issue of federal jurisdiction. If commonwealth schools don’t want to comply, fine. Just return the millions of dollars the federal government bequeaths on an annual basis and we’ll call it square.

But the governor, of course, wants it both ways, enabling local school districts to kick transgender kids while continuing to collect unabated the dough from Washington. That just doesn’t jibe under Title IX.

But there’s more silliness to scoff at as a result of Bevin’s own words. His claim that, once again, Madison wrote into the Constitution a prohibition against the fed involving itself in school restroom matters is downright laughable. Try setting up separate bathrooms in a public school for white and African-American children, or white and Asian children, or any ethnic group of your choosing and see how long it takes for the federal government to rightfully and understandably descend with the wrath of God.

Unless you’re willing to argue that local schools may, if they so deign, create separate but equal loos for pale skinned and dark skinned students, and Washington can’t do anything about it, you’re relieving yourself up a rope (sorry, I couldn’t help myself) when it comes to transgender minors.

It may seem silly that restroom rights have assumed center stage in the fight for transgender equality. But it’s worth remembering that one of the big issues in the Jim Crowe South during the Civil Rights Era concerned separate, and eternally unequal, facilities for white folks and African-Americans, ranging from drinking fountains to, of course, rest rooms. So it should come as no surprise that the fight now extends to the transgender community.

Now, of course, those opposing the administration’s position are doing what they always do best – mongering fear. They voice concern that male students, posing as transgender, will take the opportunity to enter a girls’ bathroom and engage in sexual assault.

Despite some anecdotal claims, police departments in 17 states and 200 cities that feature non-discrimination ordinances that permit transgender people to use the restroom of their choice have found no evidence of any uptick in reported rapes or sexual assaults. The directive from the Obama administration requires schools to recognize a student’s chosen gender identity for restroom purposes only after a parent or guardian notifies the district.

And then there’s the costs involved. You may remember Bevin’s predecessor, former Gov. Steve Beshear, inexplicably got the commonwealth embroiled in a federal court fight over same-sex marriage, defending the indefensible by seeking to prohibit such nuptials. You may further have noticed that the U.S. Supreme Court determined that prohibiting same-sex marriage was, indeed, unconstitutional and, somehow, the heavens didn’t come crashing down.

But that’s beside the point.

Beshear’s misbegotten venture cost the commonwealth $1.1 million in fees for the attorneys who successfully challenged the state’s position and supported same-sex marriage – under federal rules, attorneys on the prevailing side are entitled to “reasonable fees’’ to be paid for by the losing side. The state furthermore had a contract to pay attorneys representing the commonwealth $260,000. So the whole case cost upwards of $1.3 million.

That losing case was undertaken after several states already had filed suit challenging same-sex marriage. In this instance, Bevin likewise stepped in after 11 states had already sought to overturn the bathroom privileges of transgender students.

Sound familiar? The commonwealth is just flushing money down the toi…oh never mind.

After pushing through a two-year budget that killed secondary and higher education in a state that traditionally encounters problems teaching its students, one would think the new governor would exercise caution before getting involved in yet another quixotic venture, especially after the issue is going to be adjudicated on the federal level whether Kentucky gets involved or not.

But that, of course, isn’t going to be this governor’s way. Divide rather than unite. Pick on those who already suffer alienation. Toss money away after taking it from school kids.

Quite a record he’s running up there.

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I was shocked and saddened to learn of the death of Don McNay, an author, financial advisor, fellow columnist and proud product of Covington Catholic High School, who died unexpectedly in New Orleans on Sunday. He was only 57.

I knew Don after appearing with him on “Comment on Kentucky’’ several times and always found him to be a most kind, amiable and knowledgeable gentleman with the betterment of the commonwealth he called home foremost on his mind. Saw him in April for the Kentucky Journalism Hall of Fame induction ceremony in Lexington, finding him about 100 pounds lighter and seemingly in good health. His departure from this mortal coil is, indeed, terrible news.

It’s often been said tomorrow is promised to no one. The commonwealth, and as well as the friends and family of Don McNay, would have greatly benefited from many more tomorrows in his presence.

Washington correspondent Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.