Editorial: How schools must handle diverse gender identities

In 2017 Nevada legislators passed a bill requiring schools in the state to establish policies for “addressing the rights and needs of persons with diverse gender identities or expressions.”

A month ago the state Department of Education published a draft spelling out changes to the Nevada Administrative Code to comply with the law. As written, the policy requires all school personnel and students to not only accommodate but support those born with one gender but who “identify” as the opposite gender.

“Each school or school district shall address the rights and needs of persons with diverse gender identities or expressions on an individualized basis to foster the safe and healthy development of the gender identity and expression of each pupil,” the policy states.

It also requires schools to create measures that “ensure that each person governed by the policy, including, without limitation, each employee, volunteer and pupil, does not use names and pronouns other than the names and pronouns identified by the parent or guardian of a pupil, as recorded through the registration and enrollment process of the school or school district, in reference to or in any verbal or written communication with the pupil …” Even students are required to toe the politically correct line.

It also requires all school board members and all school employees to under go “annual training concerning the requirements and needs of persons with diverse gender identities or expressions.”

Though the changes in the law are often described as an effort to counter school bullying, the requirement that schools “prevent discrimination, harassment, bullying and cyber-bullying based on the gender identity or expression of a person” takes up two lines out of the 57-line policy.

Of course, the aspect that will be of a greatest concern to parents and students is the use of facilities such as restrooms, locker rooms and showers that have long been customarily segregated by biological gender. In that regard the policy does not allow schools to “discriminate or segregate according to gender identity or expression …” referring specifically to physical education, assemblies, dances, ceremonies and other school activities.

The policy also states that sports participation should be “in accordance with the regulations and policies of the Nevada Interscholastic Activities Association …”

Four years ago the NIAA published a little-noticed “position paper” on gender identity participation.

“A transgender student athlete at the high school level shall be allowed to participate in a NIAA sanctioned sport in accordance with his or her gender identity irrespective of the gender listed on the student’s birth certificate or other student records, and regardless of whether the student has undergone any medical treatment,” the paper declares. “This policy shall not prevent a transgender student athlete from electing to participate in a sanctioned sport according to his or her assigned birth gender.”

The paper is silent as to the use of the aforementioned facilities.

The new administrative code appears to leaves little room for school districts to establish any other accommodations for the gender diverse.

Though it sweepingly demands that schools create methods “to ensure the protection of the privacy of each person governed by the policy …” it is silent on how to protect the privacy of those who identify with the gender with which they were born. How much will it cost to build private restrooms, locker rooms and showers for everybody?

All females are born with a pair of XX chromosomes and all males with an XY pair. No amount of wardrobe changes, makeup, hairstyling or surgical mutilation will alter that. Nor will laws and policies designed to accommodate the delusion.

We thought you ought to know what is coming to a school house near you.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.



Newspaper column: Let the public see the work of public servants

Next week is Sunshine Week, March 11-17. The annual observation was created by the American Society of News (formerly Newspaper) Editors to spotlight the importance of public access to government information in a democratic republic, allowing citizens to be the watchdogs over their elected and appointed representatives.

The sunshine label was derived from a quote by Justice Louis Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.

Which brings us to the current tension between the right to know and the right to privacy.

Earlier this year a district court judge ruled in favor of a request from The Associated Press and the Las Vegas Review-Journal to obtain copies of the autopsies of the 58 victims of the Oct. 1 Route 91 country music show shooting. The judge did require that the names of the victims be redacted.

A few weeks later another judge, at the behest of the widow of off-duty police officer Charleston Hartfield who was killed at the concert, ruled that his autopsy report was private and demanded the news outlets return it. How they were to determine which one was his is unclear.

A three-justice panel of the Nevada Supreme Court quickly stepped in and basically ruled that once the cat’s out of the bag it can’t be put back. It left unsettled the question of whether autopsy reports are public records under the law in the first place.

The court opinion, penned by Justice Kris Pickering, relied on a U.S. Supreme Court ruling in a 1989 case involving a Florida newspaper called the Florida Star. The paper published the name of a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”

That court ruling said the Star’s intern reporter lawfully copied the information from records made available by the local sheriff’s office and the paper could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.

Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”

The question remains: Are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?

Back in 1982 then-Attorney General Richard Bryan issued a non-binding opinion that they are not, writing, “An autopsy protocol is a public record, but is not open to public inspection upon demand, because disclosure would be contrary to a strong public policy …”

That public policy was described as the expectation that “the secrets of a person’s body are a very private and confidential matter upon which any intrusion in the interest of public health or adjudication is narrowly circumscribed.”

But does that privacy expectation carry over beyond death and supersede the public’s right to observe how well their public servants are serving them?

The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.

All the Nevada high court panel did was say the media obtained the records legally and prior restraint would be unconstitutional. It did not say whether in the future the coroner could refuse to release autopsies.

We believe the courts or lawmakers should make a final determination in favor the public’s right to know and let the sun shine in.

It is analogous to the debate currently underway in Florida over what information should be made public about what law enforcement did prior to and during the tragic high school shooting that killed 17.

The public needs to see how well public officials are doing their jobs … or not.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Nevada Supreme Court

About that blue wave out of Texas

A number of media outlets have been all aflutter over the increase in Democratic turnout in Tuesday’s primaries in Texas, using it to suggest a Democrat resurgence in the fall.

Newsweek, for example, led with the fact Democrat vote turnout was up “a massive 87 percent” compared to 2014.

It reminded me of growing up in a Texas during a time when everyone knew that if you wanted your vote to count you had to vote in the Democratic primary, because that was where all the races were decided. Of course, it is different now. In Texas one does not declare a political affiliation at the time of registration, but chooses on Election Day. According to Pew Research Center, 39 percent of Texans describe themselves as Republicans or leaning Republican, compared 40 percent who chose the Democrat label.

Near the end of the Newsweek account it did mention that 500,000 more Republicans voted than Democrats, without noting that the GOP vote was 50 percent higher — 1.5 million Republican votes compared to 1 million Democrat votes.

Nor did the magazine make note of the fact that in 2014 the Democratic primary turnout was a paltry 4.12 percent of all registered voters compared to 9.98 percent for Republicans. So doubling the turnout doesn’t mean much.

Daily Kos graphic

Gun-Free School Zone law was an unconstitutional overreach by Congress

Rand Paul (AP pix)

I thought Rand Paul was closing the barn door after the horse had left.

He has introduced a bill to repeal the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun in a school zone, according to the Washington Examiner. But in 1995 the U.S. Supreme Court in U.S. v. Lopez declared that law unconstitutional, saying Congress did not have the power under the Commerce Clause to make such incredibly local laws.

But it turns out Attorney General Janet Reno got Congress to amend the law, adding the requirement that the gun had to have crossed a state line at some point — a meaningless add since nearly every gun has crossed a state line at some point and has nothing to do with regulating interstate commerce. But that was good enough for several federal appeals courts.

So, the repeal is apparently needed after all.

Editorial: Second Amendment is not a second-class right

Do the courts treat the Second Amendment like a second-class right?

Supreme Court Justice Clarence believes they do and makes a compelling argument.

This past week the U.S. Supreme Court refused to hear an appeal of a 9th U.S. Circuit Court of Appeals ruling upholding a California law requiring a 10-day waiting period for the purchase of any firearm. Justice Thomas penned a scathing 14-page dissent.

“The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Fourteenth Amendment requires the States to respect that right …” Thomas writes. “Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.”

Thomas says the 9th Circuit upheld the 10-day waiting law based solely on its own determination that it was “common sense,” without requiring any supporting evidence and without acknowledging a lower court’s factual findings that caused it to agree with plaintiffs that the law was unconstitutional when it was applied to people who already own guns, because it would not serve as a “cooling off” period for those who might use a firearm to harm themselves or others.

Thomas’ dissent notes that the 9th Circuit ignored the testimony previously given despite the legal requirement to weigh its validity. “California’s expert identified only one anecdotal example of a subsequent purchaser who had committed an act of gun violence, and the expert conceded that a waiting period would not have deterred that individual,” the justice observes, noting the appellate court allowed California to justify its waiting period with mere “rational speculation unsupported by evidence or empirical data …”

The courts are picking and choosing what constitutional rights to favor and which to ignore, Thomas argues, calling it “emblematic of a larger trend.” For example, the 9th Circuit struck an Arizona law that established a “cooling off” period for a woman seeking an abortion. It also invalidated a county ordinance requiring a five-day waiting period to obtain a nude-dancing license because it interfered with the First Amendment right of free expression. In another case, the 9th held that laws embracing traditional marriage failed because they were based on no evidence other than speculation, though such law reflects “thousands of years of human history in every society known to have populated the planet.”

Thomas does not let his own court off without a few verbal wrist slaps. He notes, “We have not heard argument in a Second Amendment case for nearly eight years. … And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment — even though our jurisprudence is much more developed for those rights. If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.”

The four liberal members of the court are singled out for chiding by Thomas. He says those four would have agreed to hear a case involving a 10-day cooling off period for abortion or a case involving a 10-day cooling off period for publication of racist articles or a case involving even a 10-minute delay at a traffic stop while a dog sniffed the vehicle.

“The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas writes. “The right to keep and bear arms is apparently this Court’s constitutional orphan.”

All enumerated rights in the Constitution should be accorded their proper respect and none relegated to a second-class status, subject to different standards.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.


Newspaper column: An immodest proposal for a 28th Amendment

The horrific shooting at Marjory Stoneman Douglas High School in Parkland, Fla., that left 17 dead and more than a dozen wounded at the hands of a 19-year-old armed with a semi-automatic rifle has again set off a flurry of rational and emotional debates over gun control, mental health and school security measures.

Worthy topics all, but the event has also fostered an ancillary discussion about what we used to call the age of majority.

Two law professors are hanging their mortar boards on the emotional demands of frightened students that something be done to suggest that the voting age be reduced from 18 to 16.

Joshua Douglas, a law professor at the University of Kentucky College of Law, declared in a column posted online by CNN, “The real adults in the room are the youth from Parkland, Florida, who are speaking out about the need for meaningful gun control laws. They are proving that civic engagement among young people can make a difference. The ironic part? They can’t even vote yet.”

Douglas argues that the mostly 16- and 17-year-olds at the Florida school are the ones most forcefully demanding change by planning a national protest and school walkout, calling out President Donald Trump and Florida Sen. Marco Rubio for failing to support gun control laws, conducting rallies, engaging the media, keeping national attention on the issue. Therefore, he says, they should be allowed to be heard at the ballot box.

Harvard Law School professor Laurence Tribe tweeted out this erudite proposition: “Teens between 14 and 18 have far better BS detectors, on average, than ‘adults’ 18 and older. Wouldn’t it be great if the voting age were lowered to 16? Just a pipe dream, I know, but … #Children’sCrusade?” (Pay no heed to what happened during the previous Children’s Crusade.)

Since the shooter was a 19-year-old, President Trump had his own twitter suggestion about altering an age threshold, “I will be strongly pushing Comprehensive Background Checks with an emphasis on Mental Health. Raise age to 21 and end sale of Bump Stocks! Congress is in a mood to finally do something on this issue — I hope!”

Never mind that a 17-year-old, with parental consent, may join the military and be required to handle semi-automatic weapons.People forget the legal voting age was 21 not so long ago. The 26th Amendment lowered it to 18 in 1971 during the Vietnam War, when the slogan was: “Old enough to fight, old enough to vote.”

That slogan apparently doesn’t hold water, or alcohol, when it comes to drinking. In 1984, President Ronald Reagan signed the National Minimum Drinking Age Act, requiring all states to raise the legal drinking age to 21 or forgo federal highway funds.

We seem a bit arbitrary in drawing the age of majority line.

Science tells us the human brain in most people does not reach full maturity in its decision-making capacity until the age of 25. For instance, Sandra Aamodt, a neuroscientist and co-author of the book “Welcome to Your Child’s Brain,” told National Public Radio a few years ago that a 20-year-old is 50 percent more likely to do something risky if two friends are watching than if he’s alone. Perhaps that is why rental car companies charge a higher rate for drivers under 25.

Aamodt suggested there might be different age thresholds for different functions. “Obviously some 18 year olds are competent to go out into the world and handle things by themselves and some of them aren’t,” she was quoted as saying. “It would be nice if we had a little more flexibility to distinguish the two in the legal system.”

Our Constitution also recognizes that certain functions must be reserved till later in life. You can’t serve in the House of Representative until age 25, in the Senate until age 30 or as president until age 35.

Perhaps someone should proffer a 28th Amendment. One that raises the legal voting, drinking and gun purchasing age to 25. Do I hear 35?

As Jonathan Swift once said, “I profess, in the sincerity of my heart, that I have not the least personal interest in endeavouring to promote this necessary work, having no other motive than the publick good of my country …”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Florida students demand gun control. (AP pix)

Due process comes first, Mr. President

Trump’s grasp of the Constitution is slippery at best.

“I like taking the guns early, like in this crazy man’s case that just took place in Florida … to go to court would have taken a long time,” The Hill quoted Trump as saying during a meeting with lawmakers on school safety and gun violence Wednesday. “Take the guns first, go through due process second.”

The Hill said Trump was responding to comments from Vice President Pence that there should be more tools for reporting potentially dangerous individuals with weapons — though those “tools” apparently failed about 45 times in the case of the Broward County high school shooter.

“Or, Mike, take the firearms first, and then go to court,” Trump reportedly responded.

I’ve always said Pence should have been on top of the ticket.

Due process is twice mentioned in the Constitution. The Fifth Amendment says the federal government may not deprive anyone of “life, liberty or property without due process of law.” While the Fourteenth Amendment, ratified after the Civil War, adds that the states also may not “deprive any person of life, liberty, or property, without due process of law …”

These principals as relates to gun ownership were upheld by the Supreme Court in both D.C. v. Heller and McDonald v. Chicago.