A RECENT ADOPTED RESOLUTION; Congressional Record Vol. 162, No. 141
(Extensions of Remarks - September 19, 2016)

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[Extensions of Remarks]
[Pages E1288-E1289]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                      A RECENT ADOPTED RESOLUTION


                        HON. JOHN J. DUNCAN, JR.

                              of tennessee

                    in the house of representatives

                       Monday, September 19, 2016

  Mr. DUNCAN of Tennessee. Mr. Speaker, on August 9, 2016 I had a 
conversation with my good friend and Knoxville Attorney James M. Crain.
  Mr. Crain and I had the opportunity to discuss the federal edict 
announcing that every public school in America is to allow students to 
use whichever bathroom they choose.
  During our conversation Mr. Crain discussed a resolution adopted by 
the West Knoxville/Knox County Republican Club offered by Mr. Crain.
  Newscom published an opinion editorial titled, ``A Bathroom of One's 
Own,'' that is consistent with the adopted resolution.
  This article is well reasoned and is consistent with the views of 
many of the people from my District in East Tennessee.
  I think most people are tired of all the publicity on this issue and 
wish we could get back to a time when sexual preference was kept purely 
  I also believe that the Federal government should have very limited 
power over the decisions State and local governments make about their 
schools. This has long been my position.
  Mr. Speaker, I would like to call to the attention of my Colleagues 
and other readers of the Record the resolution adopted by the West 
Knoxville/Knox County Republican Club and the article that ran in The 
Weekly Standard on June 7, 2016.

                    A Bathroom of One's Own--Newscom

       Two weeks ago the Obama administration issued a federal 
     edict decreeing that every public school in America allow 
     students to use whichever bathroom they choose, under pain of 
     lawsuit and/or loss of federal funding.
       Less than a week after that, New York City's Commission on 
     Human Rights issued its own edict, declaring that anyone 
     under the city's rule who refused to use the preferred gender 
     pronouns in dealing with transgender individuals--he, she, 
     ``xe,'' or ``hir''--would be guilty of harassment and subject 
     to penalties up to $125,000 for the first infraction and 
     $250,000 ``for violations that are the result of willful, 
     wanton, or malicious conduct.'' As law professor Eugene 
     Volokh noted, the use of the term ``harassment'' is 
     important, because it means that employers and businesses are 
     responsible not just for their own behavior but for the 
     behavior of their employees and customers.
       And New York is, if you can imagine it, behind the times. 
     Out in Oregon, Leo Spell, a fifth-grade teacher in the 
     Gresham-Barlow school district, decided she was transgender. 
     (Soell made this decision public only after receiving 
     tenure.) Soell's transition took the form of insisting that 
     she was neither male nor female and demanding that her 
     colleagues refer to her as ``they.'' When other teachers 
     continued to call Soell ``she'' and ``her'' and ``Miss 
     Soell,'' Soell filed a harassment complaint. The school 
     district settled with they for $60,000 and promised to 
     initiate a sweeping set of transgender reforms. To hammer 
     home the power dynamic, the school district claimed, in the 
     statement accompanying the payout, that it was quite 
     ``pleased'' with the outcome.
       If you think that's depressing, it could always be worse. 
     In Canada, the minister of justice recently introduced 
     legislation banning discrimination based on ``gender 
     identity'' and ``gender expression,'' which could join 
     previous legislation criminalizing anti-trans ``hate 
     propaganda.'' Should the bill pass, you could do up to two 
     years, hard time, if you think the wrong thoughts or say the 
     wrong words.
       If this all seems like an inordinate amount of heavy 
     artillery for an infinitesimally tiny issue, that's actually 
     the point. Much as fights in academia are so bitter because 
     the stakes are so small, transgender activists are crushingly 
     authoritarian because the justice of their cause is so 
     uncertain. What the trans project lacks in moral and logical 
     clarity, it hopes to overcome with vehemence and 
       The confusion is abundant. If you tell a transgender 
     activist that gender is determined biologically, through 
     chromosomal composition, they reply, Well, what about people 
     with Klinefelter (XXY) syndrome? But even with Klinefelter's 
     chromosomal anomalies, only a very small proportion of 
     persons will fall into a category of ``intersex.'' As 
     National Review's Celina Durgin points out, arguments about 
     the tiny, tiny sliver of the population who are biologically 
     considered ``intersex'' actually run counter to transgender 
     ideology, which places ``gender identity''--a self-discovered 
     concept--on a separate plane above mere biology. In other 
     words, if being biologically XX is irrelevant to whether or 
     not you are a girl, then why should it matter if you're XXY? 
     Resorting to arguments about the intersexed is actually an 
     admission of the primacy of biology.
       Or consider ``gender fluidity,'' another pillar of the 
     transgender project. According to this precept, some people 
     may be one gender on Monday and another on Tuesday. Who can 
     say which is which, or who is when? Not you. The individual 
     is what he/she/they/xe/hir says at any given moment.
       And once you've divorced gender from biology and agreed 
     that someone who is chromosomally XY can be a woman, you have 
     no valid reason to object if, the next day, she says she is a 
     man again. If you sign on for transgenderism, you're signing 
     on for gender fluidity, too.
       It doesn't stop there, of course. Once you shoot past 
     gender fluidity and the nongendered ``theys'' like Leo Soell 
     and ``pangenders'' (who claim to be everything rolled into 
     one), there's a whole other universe of gender identities out 
     there. For instance, ``otherkin.''
       What are ``otherkin''? Otherkin is the gender identity of 
     people who believe that they are nonhuman. Last summer 
     Vice.com profiled a fellow who identifies as a fox. Some 
     identify as dogs. Some as lions. Some as dragons. Some 
     otherkin even go through body-modifications to make their 
     physical selves look more like their otherkin identity.
       The otherkin aren't officially part of the LGBTTQQIAAP 
     alliance yet. But just wait. They're coming. Because to deny 
     them their place at the table--to deny that a human person 
     can be not just an animal, but a creature that does not even 
     exist in the real world--is to put the entire transgender 
     project in jeopardy. Because transgender theory, which posits 
     that the self is infinitely plastic, cannot survive a single 
     limiting precept.
       Fortunately, we are not yet fighting over the rights of 
     otherkin unicorns. In the here-and-now, we merely have wars 
     over public bathroom and school locker room accommodations. 
     This may seem like a small-scale concern. The Census Bureau 
     and the New York Times tried to estimate the number of 
     transgendered persons in the United States last year and came 
     up with a figure somewhere between 21,000 and 90,000. Or, to 
     put it another way, transgenders probably make up between 
     0.007 percent and 0.029 percent of the American population. 
     When you're dealing with fractions this small, it's hard to 
     be precise.
       But because virtue-signaling is the highest form of 
     morality in modern America, the full force of the federal 
     government is being brought to bear on transgender bathroom 
     rights, not only through Obama's federal edict, but through 
     the Obama Justice Department's fight against the state of 
     North Carolina.
       In March, the elected officials of North Carolina voted on 
     and passed a piece of legislation, HB-2, which was designed 
     to stop the forced march toward mandating that people must be 
     free to use whatever bathroom they desire. (It is instructive 
     to note that the initiatives pushing the transgender agenda 
     are almost never enacted legislatively; they are often rammed 
     through bureaucracies and commissions or accomplished by 
     executive fiat.)
       HB-2 was not a perfect piece of legislation. But the 
     reaction to it was illuminating. The Charlotte Observer's 
     editorial board proclaimed, ``Yes, the thought of male 
     genitalia in girls' locker rooms--and vice versa--might be 
     distressing to some. But the battle for equality has always 
     been in part about overcoming discomfort . . .''
       Which brings us to the final bit of confusion in the 
     transgender project. At the heart of the bathroom issue is a 
     simple question: Is there a valid reason for separate 
     facilities for men and women? Is there any rational 
     justification for having separate bathrooms, or locker rooms, 
     or changing rooms, for men and boys on the one hand, and 
     women and girls on the other?
       The trans argument, per the Charlotte Observer, is 
     essentially ``no.'' By their logic, if women just need to get 
     over their discomfort at seeing naked men next to them, then 
     there's no reasonable explanation for why women could want 
     their own facilities.
       Except that this would mean there is no reasonable 
     explanation for why someone who is transgender should prefer 
     one set of facilities over another. If biologically born 
     women need to ``overcome discomfort'' about having naked men 
     around them, why shouldn't a biological man who identifies as 
     a woman not similarly have to overcome his discomfort at 
     being around other naked men?
       The logical paradox of the transgender bathroom war is that 
     it insists that the type of gender and genitalia in a public 
     facility is completely irrelevant--except to the 
     transgendered, for whom it is of supreme importance.
       At the end of the day, if you're not in favor of unisex 
     facilities for all--one bathroom for everyone to use--then 
     the transgender case falls apart. Because the transgender 
     project tacitly admits that there are reasons of privacy, 
     modesty, and prudence for segregating the sexes. It merely 
     wishes to trump these concerns from the vast majority for the 
     special pleading of a small, powerful, and illiberal group.
       It is the very definition of the tyranny of the minority.


             The West Knoxville/Knox County Republican Club

       Whereas, Persons who assert a ``gender identity'' other 
     than their sex are claiming a right to utilize rest room 
     facilities, locker rooms and associated showers with persons 
     of the opposite sex; and
       Whereas, No such right has existed in the history of 
     mankind; and

[[Page E1289]]

       Whereas, Persons--and particularly females--are made 
     extremely uncomfortable by the presence of persons of the 
     opposite sex in such facilities; and
       Whereas, There is no way to determine the legitimacy of a 
     claim of ``gender identity,'' thus opening the door to false 
     claims made to gain entrance to such facilities for immoral 
     and illegal purposes; and
       Whereas, Agencies of the Federal Government have exceeded 
     their lawful authority by construing various Acts of Congress 
     as conferring a right to utilize such facilities designated 
     for persons of the opposite sex upon persons claiming a 
     ``gender identity'' different from their biological sex, to 
       a. On January 7, 2015, the Department of Energy Office for 
     Civil Rights issued a letter construing 34 C.F.R. 106.33 
     (implementing 20 USC 1681(a)) as requiring that transgender 
     students in schools that receive Federal funds must 
     ``generally'' be allowed to utilize bathrooms and locker 
     rooms assigned to the gender with which they identify. The 
     Court of Appeals for the 4th Circuit, citing deference to 
     administrative construction, has reinstated a suit by a 
     transgender ``male'' to require her Virginia high school to 
     allow her to use the boys rest room, and
       b. The Department of Justice has sent a letter to the 
     Governor of North Carolina, asserting that the provisions of 
     North Carolina H.B. 2 violates the Civil Rights Act of 1964 
     because it treats Transgender persons differently than non-
     transgender persons by denying all persons the right to use 
     multi-person facilities assigned to persons of the opposite 
     sex, and
       Whereas, the expanded interpretations set out above will 
     require schools, in particular, to require that 
     schoolchildren share toilet, locker and shower facilities 
     with any person of the opposite sex that claims a different 
     ``gender identity,'' and
       Whereas, with particular reference to 20 USC 1681(a), this 
     expanded interpretation of ``sex'' will have the effect of 
     mandating that transgendered ``females'' be allowed to try 
     out for and compete in women's sports and, because of the 
     greater strength and speed potential of biological males, 
     will largely destroy the very women's sports programs that 
     the provision was designed to foster, and which it has 
     fostered with great success; Now, therefore, be it
       Resolved as follows;
       1. That the foregoing expansions of these Acts of Congress 
     to create rights never intended or contemplated at the time 
     they were enacted is an unconstitutional exercise of 
     legislative power by the Executive Branch, and must be 
     addressed IMMEDIATELY!
       2. That the United States Code must be amended to clarify 
     the erroneous ``interpretation'' placed on it by the 
     Executive Branch by enacting a statute worded substantially 
     as follows:
       As used in this Code, the word ``sex'' refers only to 
     biological sex unless expressly stated to the contrary. No 
     such reference in this Code either requires or prohibits any 
     particular treatment of transgender individuals unless some 
     particular treatment is expressly stated therein.
       3. That since such legislation is certain to be vetoed by 
     our President, the foregoing bill MUST BE PASSED AND 
     PRESENTED TO HIM in a timely manner, so that upon returning 
     it to Congress, ample time for votes to override that veto 
       4. That this resolution be forwarded to our Representative 
     and to both of our Senators, with the notation that failure 
     to vigorously pursue the passage of the above statute will be 
     construed by the Club as your agreement with these 
     unconstitutional actions by the Executive Branch.
       5. The undersigned officers of the West Knoxville/Knox 
     County Republican Club execute this resolution in their 
     capacities as officers only, and that the undersigned 
     represent that this Resolution was passed without opposition 
     by the voting members present at the June 13, 2016 meeting of 
     the club.
       Resolved by the Club this the 13th day of June, 2016
     Gary Loe,
       Vice President.
     Paul E. Wehmeier,