Will TN’s Department of Education Flush Biological Differences Down the Toilet?

When I got into state politics 22 years ago, I never thought I would see the legislature having to debate certain things like who can use a bathroom designated for males. But perhaps the most shocking thing of all is that the Tennessee Department of Education is officially okay with our public schools allowing boys to use the restrooms and locker facilities designated for girls.

A bill will be heard next Tuesday in the House Education Administration and Planning Subcommittee that would prohibit our public elementary, secondary, and post-secondary schools from allowing someone of one biological sex to use the facilities designated for use by those of the opposite biological sex. It does allow those educational institutions to construct or allow sex-confused students to use a separate bathroom or locker room facility.

Please understand why I state the issue so bluntly. When it comes to our younger children, all a boy needs to do in order to walk into a girls’ restroom is to verbalize a desire to be treated as a girl. Don’t believe me?

Here’s what the American Psychiatric Association’s new, Fifth Edition Diagnostic and Statistical Manual of Mental Disorders says:

“For a person to be diagnosed with gender dysphoria, there must be a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her, and it must continue for at least six months. In children, the desire to be of the other gender must be present and verbalized.”1

There you go. All that needs to happen for the 8-year-old boy to use the girls’ bathroom is for him to have a verbalized desire to be treated as a girl. Case closed.

But the Department of Education is working overtime to kill this bill. It is giving reasons so bogus it is laughable.

Its first argument is that federal law requires it because of a “significant guidance document” issued by the U.S. Department of Education. Two federal district courts have already ruled that the publication is not the law and that the law does not require what that document recommends.

Second it argues that the U.S. Department of Education will withhold certain federal funds under Title IX from our schools. But under Title IX, the federal government cannot withhold those funds until an administrative appeals process has been concluded, and even then, the federal government must give the state thirty days to comply with the administrative ruling. No funds provided during the administrative process have to be paid back, even if the state loses.

The bottom line is the Tennessee Department of Education’s official position is that it is okay if local schools want to allow biological males to use bathrooms and locker rooms designated for biological females. According to the Department, local schools should be allowed to do that because the state believes in local control. Yeah, right. And that’s why we have so many laws telling schools what they can and can’t do.

I’m sure the Department would say my characterization of its position is not true, but as Ryan Anderson said this week about the South Dakota Governor’s veto of a similar bill passed in that state:

“Ask yourself: Why do we have girls’ locker rooms and boys’ locker rooms in the first place? We have sex-specific restrooms and locker rooms not because of “gender identity”—however one defines it—but because of biology. Men and women have bodily differences, and that’s why we have men’s rooms and ladies’ rooms. It’s not about gender identity, but biology—and protecting privacy related to our bodies.”

The Tennessee Department of Education needs to stop hiding behind all these specious arguments and develop an ethical spine regarding human sexuality and biology. It needs to say that there is something true about the nature of human biology or there is not, and then support policies accordingly.

Let’s hope the House’s subcommittee will respect the biological differences between the male and female bodies and the value of modesty and send the Department of Education to the school of common sense for some re-education on this subject.


  1. An official statement of the APA regarding the DSM can be found at this link.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Donald Trump, Conservatives, and the Obama Effect

Many in the Republican Party leadership are trying to understand the phenomenon of Donald Trump. And the question on the minds of many of them is what is his appeal to conservatives, particularly the social conservative, religious-right Republicans? I admit that I have no scientific polls and no Trump-voter psychological profiles upon which to base my thoughts, but here are five things I’ve observed.

The first is nothing really surprising. Many conservative Republicans are extremely angry with the Republican Party. I understand that. Even though many and perhaps a majority of those in that camp are supporting Carson, Cruz, or Rubio, the fact is that a significant enough percentage of them support Trump—and that is making a difference.

A second, related factor is that a number of conservatives simply don’t want anyone connected at all with Congress or Washington politics. Period. They no longer trust anyone associated with Washington. I think that’s the baby-and-the-bathwater thinking, but I understand it.

Third, I think some social conservatives have despaired of “values candidates” actually doing anything in support of their values. They have not lost their concern for the social values that drove them in the past to reluctantly support the Doles, McCain, and Romneys, and the do-nothing-but-make-excuses-for-inaction social conservatives who have been elected to Congress, but they have decided that supporting such conservatives isn’t going to result in those values being reflected in public policy.

So, at this point, I think some social conservatives see no reason to continue supporting candidates who run on those values simply because they espouse those values. They believe history has shown them it won’t matter, so they are voting for someone who talks tough on the other issues they care about. I don’t agree that social values don’t matter, but I understand how some have reached that conclusion.

What we see in the foregoing points is that the moderate, entrenched Republican leadership has driven a number of conservatives to Mr. Trump, which leads to my fourth observation—some conservative Trump supporters are sending a message.

Conservative Republicans have often spoken of not supporting a moderate Republican, supporting a moderate Republican presidential nominee, or voting for another party’s candidate, like the Constitution Party. But perhaps some of the conservatives supporting Trump won’t send the “message” they want to send to the moderate Republican leadership. After all, if they leave the party or vote for a third- party candidate, then the moderate wing of the Party will get its candidate and, perhaps for moderates, that is more important than actually winning the presidency. So, perhaps conservatives supporting Trump are making sure the moderate Republican leadership doesn’t get the nominee it wants and, for them, that message is a stronger message than if they left the party.

A fifth thing driving some of the conservative Republicans to Trump is what I call the “Obama phenomenon.” In 2008 Americans in large numbers knew things were wrong in America and looked at the fact that we were led by a Republican president. Consequently, they were looking for someone to give them hope that things could change.

Similarly, I think the support of some for Trump is reactionary in nature, fed by anger and frustration with Congress and the moderate Republican Party leadership. And, like Obama was for many fearful, angry Americans in 2008, Trump represents hope for change for these Republicans.

In conclusion, my concern in this election, as with any election, is that emotions not drive our decisions, particularly anger. I know from personal experience that anger rarely produces good results.

But beyond personal experience, I also know that the “anger of man does not achieve the righteousness of God” (James 1:20). While we usually apply that verse only to our personal lives, the principle is not so limited. God desires righteousness in civil government, and decisions in the governmental realm propelled by anger will not achieve that righteousness.

As we head to election day, my prayer is that fear, frustration, and blind hope for change will not prevent voters  from examining the values, policies, and character of all those who seek our support and then casting a vote that aligns with those things.

Photo Credit:
Mr. Donald Trump New Hampshire Town Hall on August 19th, 2015 at Pinkerton Academy in Derry, NH by Michael Vadon on Flickr. CC BY

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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How the Presidency is Like the Electoral College

Last week I wrote about the Electoral College and how it serves as sort of a mediating body in the selection of the President. It serves to mediate between the will of the people as a governing body, based on majority rules, and the will of the states as governing bodies, based on the principle of federalism. But I got to thinking that the presidency operates as sort of an electoral college for deciding who the real rulers of America are.

Americans rightly make much of whom the next President will be, because the presidency is a powerful office. President Obama has shown just how powerful it can be if a President is willing to use the extra-constitutional powers found in a pen and a phone. But the President’s power to influence Congress and to issue executive orders isn’t the most important power the office possesses.

What we must appreciate is that the President services as a one-person nominating committee to the body that actually rules America. In that sense, the Office of President is a bit like the Electoral College—it is that mediating “body” that sits as a buffer between the people and the Supreme Court that actually rules us.

That the Supreme Court rules America today is not hyperbole. The late Supreme Court Justice Scalia said it this way in the Obergefell same-sex “marriage” decision last summer:

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court.”

The power of judicial review—the power to judge a state law or congressional enactment as contrary to the U.S. Constitution—has always been powerful. But Justice Scalia’s statement was recognition of the fact that, in Obergefell, the Court not only exercised the power to declare that a state law was unconstitutional, but took upon itself a new power to declare what the new state law must be.

When the Supreme Court can decree what laws a state must affirmatively enact or, if the state fails to “obey” what the Court says it must do, can “enact” those laws anyway for the state, then the Court is ultimately in charge. The powers of the presidency, Congress, and the states are subordinate and subservient to the Court, and the Court, not the Constitution, is supreme.

While I care about a lot of issues—laws relative to gun rights, abortion, religious liberty, social experimentation in the military, immigration, fighting terrorism, etc.—how our elected officials will deal with these issues is only the penultimate issue; as much as I hate to say it, the ultimate issue is who is on the Supreme Court and to what extent will the Justices “allow” these federal and state elected officials to address these issues.

I loathe that last statement; I don’t want to concede its truthfulness, because it is a statement our Founding Fathers would have never made or envisioned Americans making. But until we have some members of Congress willing to reign in the Supreme Court, and we won’t have those until our citizens and state officials demand that our members of Congress do so, that’s where we are.

Choose wisely over the next few days as you vote in the Presidential Primary, because you are electing the person who has the sole power to nominate members to the de facto ruling body in America.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Do Tennessee Republicans Need Rescuing From Themselves?

I’ve always sensed that Republicans, as a whole, were good at getting manipulated, out-foxed, or hoodwinked by Democrats, and a bill coming up in a state Senate committee for vote next week seems to fit that pattern. If citizens aren’t awake, they may also be taken in to the detriment of us all.

The bill, Senate Bill 1657, would commit Tennessee’s electoral college votes to whichever presidential candidate has the largest percentage of the total presidential vote, nationwide, even if it is not a majority of the vote.

The reason I’ve been given for the bill is that some think a pure popular vote is the only way Republicans are ever going to be able to elect a President in the future. As I see it, there are three problems with this argument. First, the facts are against them. Second, the bill won’t fix our real problem. And third, history shows we create unintended problems when we mess with our Founding Father’s wise procedures.

The Facts

Assuming that we don’t want to adhere to the governing philosophy bequeathed to us by our Founding Fathers who tried to find a means by which the majority could rule while also protecting the majority from the tyranny that results when they are mislead, deceived, or uninformed, then let’s just look at the facts surrounding this bill.

The fact is there has been only one presidential election in over 20 years in which the Republican won the national popular vote. Furthermore, when Bush won in 2000, had this bill been in effect, he would have lost to Gore because Gore had more votes than Bush and our Electoral College votes would have gone to him.

Yet, for reasons I can’t fathom, some seem to think that, going forward, there are going to be a greater number and percentage of Republican voters. Yeah, right. Maybe after the next generation gets “Bern-ed” by a Sanders-type presidency a few times.

There is also data to bear the fact that the bill plays into the hands of Democrats. The Republican National Committee (RNC), which opposes the bill and which you would think might give the Republican sponsors of this bill some pause, did a statistical analysis of the bill. The analysis shows that of the 20 states that stand to “gain power” from a National Popular Vote, sixteen of them voted for Obama in 2012.

Not only was Tennessee not among the twenty, but according to the analysis, Tennessee would actually lose power when it comes to presidential elections. We don’t have much now, so I’m not sure why losing what little we have is a good idea, unless the hope is that the bill will cut down on television campaign commercials every four years.

These kinds of facts may also explain why the only states that have passed this compact are deep blue states and why liberal George Soros is putting so much money behind this effort.

The Problem

But our problem in America isn’t that we’ve not had enough Republican presidents. Our problem isn’t the Constitution or the Electoral College. Our problem is us—too many uninformed, mislead, disinterested, what’s-in-it-for-me-now voters. This bill will not “fix” that problem.

But that’s not all. Our larger problem is Congress. They are the ones who will not stand up to a phone-and-pen President, won’t reign in federal courts, and are spending us into oblivion.

What can a President who adheres to the constitutional separation of powers really do with an inept Congress other than perhaps embarrass them into doing the right thing? Then again what makes us think a little embarrassment is what is needed to reform Congress? If an in-the-toilet approval rating isn’t enough embarrassment to bring reform, then I don’t know that even a brash or bold Republican President is going to fix this problem.

A Bad History of “Reversing” Our Founding Fathers

One of the times we changed the wise election procedures put in our Constitution—changing the way we elect U.S. Senators—we unwittingly started on the journey that has now effectively abolished federalism. Catering to the majority’s wants, not fidelity to the Constitution and particularly the constitutional principle of federalism, is now more important for most U.S. Senators.

And now, not for sound policy reasons, but in the hope that a Republican will have a better chance of getting elected President, we have some who want to circumvent the wise principles and structures in our Constitution that sought to minimize the tyranny of a majority that could be easily manipulated and mislead.

Like the 17th Amendment, this national popular vote bill seems to be a “fix” not fitted to the problem. And pure democracy, once armed and with no structural restraints, will never regulate or restrain itself. Never has; never will.

Presidential candidates already promise too much to too many to get their votes. This will make that problem only worse. Worse yet, they will then claim they have a “mandate” that Congress must enact.

Who will save these Republicans from themselves? And maybe the better question is who will save America from itself?

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Federal Lawsuit to Test Constitutionality of Gun Carry Permits

Let me share with you what I think will be the next federal lawsuit related to the Second Amendment. It will test the constitutionality of state handgun carry permits. The legal argument is creative but not far-fetched. What the U.S. Supreme Court will eventually do when the case comes before it is anybody’s guess. If the Court draws its writing pen faster than the NRA can pull the trigger on the Court’s judicial powers, it’s over for gun owners!

The argument rests on the new constitutional jurisprudence articulated by Justice Kennedy in Obergefell last summer. Here are the key quotes from Obergefell that support the effort to ban handgun carry permits:

  1. “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”
  2. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
  3. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

The constitutional text at issue in the case is the Fourth Amendment, which provides “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Notice the words “secure in their persons.”

The argument is that the “legal strictures” we’ve “received” regarding the “bearing” of arms was based on a different type of society and that that “stricture” is now causing “discord” between one individual’s “right to keep and bear arms” and another person’s right to be “secure in their person.”

Using Justice Kennedy’s legal reasoning, the argument is that, even as we have come to “learn”  a new “meaning” for marriage, we are now “learning” the central meaning of what it means to be “secure in our person” in a society that is increasingly violent and in which guns, easily acquired and concealed, are being used to shoot people in movie theaters, on college campuses, and at community centers. It is not enough to be safe from “searches and seizures;” we must be safe in public places as well.

The argument is that there is a new fundamental right to be secure in one’s person in public places. And given the growing “discord” between this new right and the right to keep and bear arms, the fear is that the federal court will try to strike a compromise between the two.

The gun control advocates rely on the fact that the Fourth Amendment puts an emphasis on the home: “The right of the people to be secure in their . . . houses, papers, and effects, against unreasonable searches and seizures.” In other words, they argue, the right to keep and bear arms is paramount within one’s “house,” where one’s person, papers, and effects must be “secure.” For them, the right to bear arms outside the home is secondary, where modern-day law enforcement supposedly can protect you if people are not armed with guns.

Therefore, the constitutional emphasis in the phrase “the right to keep and bear arms” should be on the word “keep” rather than “bear.” By doing so, the Court can hold handgun carry permits unconstitutional and resolve the “discord” created by the new right to personal security in public places and the Fourth Amendment’s two-pronged rights—the evolving right to personal security in public places and the textual right to personal security in one’s home.

It is a creative argument, but at least this one has some text in the Constitution that its advocates can be pointed to, whereas there was no text in the Constitution to support the Obergefell Court’s “newly found” right to marry. Those who said they didn’t care about Obergefell because they didn’t care about who married whom may find themselves the next victim of the Court’s liberal majority.

It will soon be time1 for another shoot out at the Supreme Court corral, and if the NRA members don’t strap on their legal arguments against Obergefell and start shooting, they’ll just be another notch in the Court’s holster of conservatives they’ve taken down.



  1. Like a previous week’s commentary about the income tax, there is no lawsuit presently pending asserting this new right. But, again, if I can figure out the argument, you know that the high-priced lawyers for gun control advocates can. I confess, I find a measure of pleasure in helping those who say they don’t care about marriage wake up to what the Obergefell Court really did. However, do not read this commentary as saying I like the argument or that I hope it “wins.” I’m just saying Obergefell opened the door to a whole lot more than same-sex “marriage.”

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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