In recent weeks, the issue of gender identity as it applies to bathrooms in public schools has been in the news.  In particular, as the U.S. government has taken a position on this issue, certain (Republican-controlled) states have objected to the government’s position.  This objection (at least in the media) has not been on the merits — should students who identify as a different gender than their biological gender use the bathroom of their preferred gender identity or their biological gender — but rather attacking the federal government even taking a position.  This attack is both historically flawed and misrepresents what is taking place.

The history part of this discussion requires going back to 1865.  The United States government had just won the Civil War.  As part of the executive plan for reconstruction, the southern states had to abolish slavery, but otherwise were generally allowed to re-form their government with few restrictions.  These newly re-formed governments promptly enacted new legislation to greatly restrict the freedom of the former slaves.  In response, Congress passed a series of statutes and then proposed a new constitutional amendment (which became the Fourteenth Amendment) guaranteeing equal protection of the laws to all residents and authorizing Congress to pass legislation to enforce that guarantee.

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