Published May 12, 2016
In a series of posts on National Review Online’s Bench Memos blog, EPPC President Ed Whelan examines the Justice Department’s claim that North Carolina’s implementation of its recently enacted H.B. 2 would place it in violation of Title VII of the Civil Rights Act of 1964.
Part 1 (The Basics)
May 5, 2016
Yesterday, Vanita Gupta, the principal deputy assistant attorney general in the U.S. Department of Justice’s Civil Rights Division, sent a letter to North Carolina governor Pat McCrory in which she presented the Department’s utterly ill-founded claim that North Carolina’s implementation of its recently enacted H.B. 2 would place it in violation of Title VII of the Civil Rights Act of 1964. Ms. Gupta has oh-so-graciously given Governor McCrory until the end of the day on Monday to inform her whether he will surrender to DOJ’s threat.
In a series of posts, I will show that Gupta’s threat is a lawless assault that, if it succeeds, portends dramatic consequences nationwide.
Let’s start by getting the basics straight:
1. H.B. 2 provides that “single-sex multiple occupancy bathroom and changing facilities [e.g., locker rooms and shower rooms]” in public schools and government agencies shall be “designated for and only used by persons based on their biological sex.” At the same time, as an accommodation to individuals who have a gender identity that differs from their biological sex, H.B. 2 allows schools and agencies to provide single-occupancy bathrooms and changing facilities.
In short, in public schools and government buildings, men’s or boys’ bathrooms, locker rooms, and showers that are “multiple occupancy” are reserved for biological males, and women’s or girls’ bathrooms, locker rooms, and showers that are “multiple occupancy” are reserved for biological females.
But, wait: Isn’t that exactly the state of affairs that nearly everyone has understood to exist throughout the country both before and since the enactment of Title VII in 1964? Yes, it is.
Let me add a couple of additional points of clarification. (For more, read this “Myth vs. Facts” document issued by the North Carolina government.)
H.B. 2 defines “biological sex” as the “physical condition of being male or female, which is stated on a person’s birth certificate.” If a person undergoes a surgical so-called “sex change,” North Carolina law enables that person to change the sex listed on his birth certificate.
H.B. 2 does not speak at all to how private businesses set up their multiple-occupancy restrooms, locker rooms, and showers. So if, say, a private gym wants to allow men who think they’re women to use the women’s locker rooms, it is free to do so.
2. Title VII states, in relevant part, that no employer shall “discriminate against any individual with respect to his … terms [or] conditions … of employment, because of such individual’s race, color, religion, sex, or national origin.” (Emphasis added.)
3. Gupta’s core claim in her letter is twofold: first, that Title VII’s bar on discrimination based on sex includes a bar on discrimination based on gender identity; and second, that H.B. 2 “is facially discriminatory against transgender employees on the basis of sex [read: gender identity] because it treats transgender employees, whose gender does not match their ‘biological sex,’ as defined by H.B. 2, differently from similarly situated non-transgender employees.”
As I will show (largely repeating my refutation of the Obama administration’s similar claim under Title IX), the second part of Gupta’s claim has things entirely backwards. Assigning facilities on the basis of biological sex does not discriminate at all on the basis of gender identity. Instead, it is Gupta and the Obama administration who seek to compel North Carolina to discriminate “because of”—in favor of—gender identity. Their claim not only misconceives what discrimination is; it also collapses into incoherence.
Part 2 (Chesterton’s Advice)
May 5, 2016
Before diving into the legal arguments, permit me a diversion of sorts.
G.K. Chesterton famously advised that “long comfortable words … save modern people the toil of reasoning” and that it is therefore “a good exercise to try … to express any opinion one holds in words of one syllable.” I’m not going to be able to meet the one-syllable goal, but I’m going to try here to express in simple terms what is at stake.
Here’s some of what the Obama administration believes:
1. Because Johnny thinks he’s a girl, he should use the same locker room at school that Mary and Suzie and other girls use. He should be able to watch them take off their clothes and use the shower, and he should be able to walk around in front of them without any clothes on. It doesn’t matter whether Johnny and the girls are six or sixteen years old. If Mary or Suzie or their moms or dads don’t like it, too bad for them. They’re evil or stupid.
2. Same thing when Johnny goes off to college. What’s more, he should share a dorm room with girls. If they don’t like it, too bad for them. They’re evil or stupid.
3. When John grows up and gets a job, his boss has to let him use the women’s restroom. He can’t be asked to use a single-stall room instead. That would be so mean. If the women who work with him don’t like it, too bad for them. They’re evil or stupid.
4. John should be able to use the women’s restrooms and showers wherever he is. So what that an open door for John means an open door for any guy who wants to lurk? All we care about is John and folks like him. No one else matters. Anyone who disagrees is evil or stupid.
5. We have to say that John is a woman because he says he’s a woman. A woman with male genes and organs, yes. But things like biology don’t count. All that counts is what John thinks. So he should be called “she.” Anyone who disagrees is evil or stupid.
6. We don’t want to try to get new laws. That’s hard work. You’d have to try to tell people stuff they know is nuts. Let’s just claim to read all this into the laws that are now on the books. So what that no one ever thought this before? We have the judges now. No one can stop us. Anyone who tries is evil or stupid.
7. But we’ll cut our friends a lot of slack, at least for now. We’ll first just go after folks we don’t like. That way, no one will care much. Because we all know those folks are evil or stupid.
Part 3 (On ‘Discrimination’)
May 5, 2016
Let’s now address Vanita Gupta’s central claim that H.B. 2 “is facially discriminatory against transgender employees on the basis of sex [read: gender identity] because it treats transgender employees, whose gender does not match their ‘biological sex,’ as defined by H.B. 2, differently from similarly situated non-transgender employees.”
(As faithful readers will recognize, this post is very similar to my Part 3 post on the Fourth Circuit’s recent Title IX transgender case.)
As I will show in this post, reserving women’s bathrooms, locker rooms, and shower facilities for biological females (and men’s bathrooms, locker rooms, and shower facilities for biological males) does not in fact involve any discrimination on the basis of gender identity. Rather, under the guise of nondiscrimination rhetoric, the Obama administration is pressing the substantive claim that gender identity trumps biological sex under Title VII—in other words, that employers must discriminate in favor of gender identity. That is a policy position that transgender advocates are welcome to push for in the legislative arena. But it is a baseless and absurd reading of Title VII.
For the sake of argument, I will assume here that Title VII’s ban on discrimination “because of … sex” includes a ban on discrimination “because of” (or, as Gupta puts it, “on the basis of”) gender identity.
A person discriminates on the basis of a trait when he takes that trait into account in his decisionmaking,* and he doesn’t discriminate when he disregards that trait. So, for example, an employer discriminates on the basis of race when he factors a job applicant’s race into his hiring decision, and he doesn’t discriminate on the basis of race when he disregards the applicant’s race in making his hiring decision. Similarly, an employer discriminates on the basis of gender identity when he factors a job applicant’s gender identity into his hiring decision, and he doesn’t discriminate on the basis of gender identity when he disregards the applicant’s gender identity in making his hiring decision.
But in the context of single-sex bathrooms, locker rooms, and shower facilities, the very same concept of discrimination on the basis of gender identity plays very differently from what transgender advocates contend. In this context, an employer complies with the norm of nondiscrimination on the basis of gender identity when he disregards the employee’s gender identity and instead assigns the employee to the facilities that correspond with the employee’s biological sex.
In other words, it is Gupta and the Obama administration, as well as other advocates of transgender access to bathrooms and showers, who, under the guise of their nondiscrimination rhetoric, are in fact seeking to discriminate on the basis of—in favor of—gender identity. That’s exactly what a policy of making gender identity override biological sex entails: It makes gender identity determine which restrooms and showers a person is allowed to use, just as a policy of race-segregated restrooms and showers makes race determine which facilities a person is allowed to use. (I am of course not asserting that racial discrimination and discrimination in favor of gender identity are moral equivalents.)
* Perhaps better stated: A person discriminates on the basis of a trait when he takes that trait into account in his decisionmaking when there is no compelling or inherent justification for doing so. Thus, for example, it’s not discrimination on the basis of sex to have research dollars for uterine cancer go entirely to research on female subjects. (There might be a broader claim that the allocation of research dollars for cancer research generally discriminates on the basis of sex, though the apples-to-apples comparison could become very difficult.)
Part 4 (Single-Sex Facilities)
May 5, 2016
Title VII having been enacted in 1964, it’s been long established that an employer’s maintenance of separate bathroom and shower facilities for male and female employees does not discriminate on the basis of sex in violation of Title VII.* The Obama administration purports to respect the existence of single-sex facilities. What it objects to is the exclusion of “transgender employees” from the facilities that match their gender identities.
But the Obama administration’s utterly backwards understanding of what discrimination is, if embraced, would make it impossible to retain any system of single-sex facilities, including the system of transgender-modified single-sex facilities that it favors.
Let’s continue to assume, for the sake of argument, that Title VII’s ban on discrimination on the basis of sex includes a ban on discrimination on the basis of gender identity. If the Obama administration were correct that an employer must allow a male employee who thinks he’s a woman to use the women’s restrooms and showers, then it would indisputably be discrimination on the basis of gender identity for that employer to bar a male employee who knows he’s a man from using those same facilities. After all, the only difference between the two biological males is that they have different gender identities. How could one of the men be allowed to use the women’s facilities and the other be barred from doing so if Title VII bars discrimination on the basis of gender identity?
In short, the Obama administration’s unsound proposition that separate facilities assigned by biological sex involves discrimination on the basis of gender identity collapses into incoherence, as this transgender illogic would disallow any system of single-sex facilities to survive.
* To be sure, single-sex facilities by their very nature distinguish on the basis of sex. But that distinction has never been regarded as discrimination under Title VII (or other similar laws) for the obvious reason that the distinction reflects the fact that men and women are different and that separate facilities serve basic privacy and safety interests that arise from those differences.
Part 5 (Legal Citations)
May 5, 2016
Vanita Gupta, author of the DOJ letter threatening North Carolina governor Pat McCrory, did toss in two citations to legal decisions. But neither decision helps her legal claim, and the second in fact would defeat it.
First, Gupta observes that the EEOC recently adopted, in Lusardi v. Dep’t of the Army, exactly the position that the Obama administration is asserting: that (in the words of theEEOC) “denying transgender individuals access to a restroom consistent with gender identity discriminates on the basis of sex in violation of Title VII.” And so it did—but not because any plausible reading of Title VII could actually support that elementary misunderstanding of what discrimination on the basis of gender identity means.
As I pointed out in my critique of that sharply divided April Fool’s decision last year, the EEOC majority maintained that “On this record, there is no cause to question that Complainant—who was assigned the sex of male at birth but identifies as female—is female.” (Emphasis in original.) Never mind that the record in question indicated that the complainant, who recently changed his legal name from Todd Lusardi to Tamara Lusardi, wasn’t arbitrarily “assigned the sex of male at birth” but is in fact genetically male and, yes, even retains (or, at least at the time of the events in question, retained) male genitalia. Anyone who thinks that “there is no cause to question” that Lusardi “is female” is an idiot or a lunatic—or a transgender ideologue.
So, yes, the same sort of “fringe leftists” who run DOJ’s Civil Rights Division also have operating control of the EEOC. That won’t be news to anyone who’s been following the two entities.
Second, Gupta states that “in interpreting the analogous sex discrimination provision of Title IX,” a Fourth Circuit panel recently held in G.G. v. Gloucester Co. School Board that the “Department of Education’s guidance that educational institutions ‘generally must treat transgender students consistent with their gender identity’ is entitled to ‘controlling weight’ under Auer v. Robbins.”
Gupta’s statement is confused because (as I explain in Part 5 of my series of posts on the G.G. ruling) the panel majority never actually interpreted what Title IX means.
More significantly, the panel majority’s analysis in G.G. cuts sharply against her legal claim for two reasons. First, Gupta’s own informal interpretation of the statutory language of Title VII, unlike the Education Department’s interpretation of its own regulation, has no plausible claim to judicial deference. Second, the Fourth Circuit made clear that the word “sex” in that 1975 regulation was best read as referring to biological sex and that it was only under Auer’s standard of super-deference that it would allow the Department to apply a different meaning to its regulation. (See point 4 here.) The very reasons that the Fourth Circuit offered for why the best reading of the word “sex” meant biological sex apply equally to the text of Title VII. So Gupta’s claim about Title VII loses under the Fourth Circuit’s analysis in G.G.
Part 6 (Some General Observations)
May 5, 2016
Some observations to wrap things up, at least for now:
1. The Obama administration’s claim, in its threatening letter to North Carolina governor Pat McCrory, that the state’s H.B. 2 violates Title VII is utterly baseless.
Even on the assumption that Title VII prohibits discrimination on the basis of gender identity, H.B. 2 clearly does not discriminate on the basis of gender identity. Rather, it is the Obama administration’s position in favor of transgender access to bathrooms and showers that discriminates (explicitly so) on the basis of gender identity.
The Obama administration’s confused conception of discrimination on the basis of gender identity collapses into incoherence, as its transgender illogic would disallow any system of single-sex facilities to survive, even the system of transgender-modified facilities that it favors.
Neither of the two decisions that the DOJ letter cites supports its claim, and the analysis in the second decision—the recent Fourth Circuit ruling on transgender bathroom access—would defeat DOJ’s claim.
2. It should be no surprise that H.B. 2 does not violate Title VII, for, wild myths and propagandizing aside, all that H.B. 2 does is codify, for North Carolina’s public schools and government buildings, the basic rules of bathroom and shower access that have long existed for multiple-occupancy facilities. It allows schools and agencies to provide single-occupancy facilities available to anyone, And it leaves private businesses free to adopt their own rules.
3. It is appalling that the Obama administration does not have the courage to attempt to pursue its bizarre and radical transgender agenda through the democratic processes and that it is instead pursuing it through bureaucratic bullying.
4. Don’t be fooled into thinking that this is only a war against North Carolina. Like any bully, the Obama administration is picking first on targets that it thinks are weak. But it is intent on imposing its agenda on restrooms and showers nationwide, and it’s counting on being able to intimidate everyone else into surrender.
Part 7 (Contra Garrett Epps)
May 6, 2016
In an Atlantic essay, liberal legal journalist Garrett Epps tries to defend the proposition that North Carolina’s H.B. 2 violates Title VII’s ban on sex discrimination. I’ll briefly explain here why his effort fails. (I’ll leave alone his broader embrace of the transgender dogmas that any effort to reserve girls’ bathrooms and showers for girls reflects “hatred” and that “trans people are people for whom the birth-certificate designation has proved to be erroneous,” but I would submit that it’s those dogmas that are steering him off the road.)
1. Epps’s major argument is that a ban on discrimination on the basis of sex necessarily includes a ban on discrimination on the basis of gender identity. He bases his argument on a very expansive reading of Justice Scalia’s 1998 opinion for the Court in Oncale v. Sundowner Offshore Services, which held that sexual harassment claims cognizable under Title VII extend to same-sex harassment claims.
Epps would seem to have you believe that Scalia and Oncale stand for the proposition that Title VII covers any discrimination based on “sex-based considerations.” But that phrase comes not from Oncale but from a plurality (not majority) opinion in Price Waterhouse v. Hopkins (1989), from which Scalia dissented.
Over a period of decades—both before and after Oncale and Price Waterhouse—every federal courts of appeals that has addressed the question has ruled that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination. In other words, the courts have not adopted Epps’s very expansive reading of Oncale.
That, of course, doesn’t mean that the courts won’t end up adopting that very expansive reading. But it does mean, contrary to what Epps suggests, that the Obama administration is being very aggressive in using a novel theory as the basis for threatening North Carolina.
2. In my explanation why DOJ is wrong to contend that H.B. 2 violates Title VII, I have nonetheless assumed for the sake of argument that Title VII bars discrimination on the basis of gender identity and I have shown that H.B. 2 does not discriminate on that basis (and that DOJ’s position does).
Epps states that “equality is more than words on a page; it is a practical concept, relating to the way people live.” I won’t disagree with his proposition, stated at that level of vapidity. But the fact of the matter is that DOJ contends that H.B. 2 is “facially discriminatory against transgender employees,” so that contention does indeed focus attention on “words on a page.” And the words of H.B. 2 do not discriminate on the basis of gender identity.
Epps further observes, drawing on his “segregated childhood” (he’s white, by the way), that “telling people what bathrooms they can and can’t use is at least potentially one” way to discriminate. Indeed, it is. But Epps has things backwards. As I wrote in my Part 3 post:
[I]t is [DOJ official Vanita] Gupta and the Obama administration, as well as other advocates of transgender access to bathrooms and showers, who, under the guise of their nondiscrimination rhetoric, are in fact seeking to discriminate on the basis of—in favor of—gender identity. That’s exactly what a policy of making gender identity override biological sex entails: It makes gender identity determine which restrooms and showers a person is allowed to use, just as a policy of race-segregated restrooms and showers makes race determine which facilities a person is allowed to use.
3. Like the Obama administration, Epps seems not to recognize (as I explain in Part 4) that his theory that H.B. 2 discriminates on the basis of gender identity would mean an end to any system of single-sex facilities, including the system of transgender-modified single-sex facilities that he favors. In other words, his position collapses into incoherence.
North Carolina Law Wins Under Fourth Circuit Transgender Ruling
May 10, 2016
My National Review (magazine) article on the Fourth Circuit’s transgender/bathroom ruling from last month is now available on NRO. (My fuller set of posts on the ruling is collected here.)
The Fourth Circuit’s ruling is a confused mess, but its analysis actually cuts strongly in favor of North Carolina’s H.B. 2 law on access to single-sex multi-occupancy bathrooms and showers in public schools and government buildings. Let me briefly sketch why:
1. As I discuss in the article (and more extensively in this post), the Fourth Circuit never reached the legal question whether Title IX requires that schools allow boys who identify female to use the girls’ restrooms, locker rooms, and showers facilities and allow girls who identify as male to use the boys’ facilities. Instead, it seems to have thought (mistakenly) that its deference to a 1975 Department of Education regulation ended the legal work that it needed to do. So its ruling did not generate a Fourth Circuit precedent on the Title IX question.
2. The Fourth Circuit majority’s analysis of the Department regulation dictates a victory for North Carolina’s H.B. 2. Specifically, the majority ruled against the school board only because it applied the Auer standard of extreme deference to the Department’s interpretation of the word “sex” in its own regulation. The Fourth Circuit found that dictionary definitions “suggest that the word ‘sex’ was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed ‘biological sex.’” But those definitions, it concluded, did not entirely foreclose the Obama administration’s new reading of sex as gender identity.
By contrast to an agency’s interpretation of its own regulations, DOJ’s informal interpretation of Title VII and Title IX has no plausible claim to judicial deference. (And it’s well settled that EEOC’s decisions also receive no judicial deference.) So the question in the HB2 matter is what is the best reading of the word “sex” in those laws. And the Fourth Circuit majority’s analysis, as well as every other indicator of what the word sex was best understood to mean in 1964 and 1972, cuts strongly in favor of reading sex to mean biological sex.
3. In the end, though, this whole question doesn’t really matter in this context, for even if Title VII and Title IX and other federal laws were read to prohibit discrimination on the basis of gender identity, H.B. 2 doesn’t discriminate on the basis of gender identity—and nothing in the Fourth Circuit’s ruling suggests otherwise.
Obama Transgender Ideologues Imprison Themselves
May 10, 2016
I’ve already explained in detail much of the illogic and incoherence that pervade the Obama administration’s claims that reserving single-sex restrooms and showers on the basis of biological sex violates Title VII and Title IX. The Obama administration also claims that North Carolina’s H.B. 2 discriminates on the basis of sex in violation of the federal Violence Against Women Reauthorization Act of 2013, and that VAWA claim is defective for the same reasons.
Plus, the Department of Justice’s reckless ideologues are now at war with themselves.
In her VAWA letter, Vanita Gupta, principal deputy in the Civil Rights Division, tells Frank L. Perry, head of North Carolina’s Department of Public Safety (DPS), that VAWA requires that “transgender individuals” be allowed to “access restrooms and changing facilities that are consistent with their gender identity in buildings controlled or managed by DPS or its sub-recipients.” The buildings controlled or managed by DPS include North Carolina’s prisons.
But DOJ has issued prison regulations, applicable to state prisons, that firmly reject any bright-line treatment of “transgender individuals” according to their gender identity. Indeed, on the very question whether to put a man who thinks he’s female (or a woman who thinks she’s male) in a men’s prison or a women’s prison, “the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.” Ditto for all “other housing and programming assignments,” which clearly include the assignment of shower facilities. Indeed, while generally prohibiting the practice, the regulations even leave open the possibility that “transgender” prisoners could be housed in “dedicated facilities, units, or wings solely on the basis of” their transgender status.
In short, DOJ’s prison regulations contradict DOJ’s unsound claim that reserving single-sex restrooms and showers on the basis of biological sex is unlawful discrimination under VAWA.
Under Obama Illogic, Women’s Sports Teams Violate Title IX
May 10, 2016
The Obama administration misreads Title IX to require that a school receiving federal funds “treat transgender students consistent with their gender identity” for single-sex “restrooms, locker rooms, shower facilities, housing, [and] athletic teams.” (Emphasis added.) Its illogic would in fact mean an end to any girls’ and women’s sports teams in schools and colleges—yes, an end even to the transgender-modified system of such sports teams that it is pushing for.
Let’s assume, for the sake of argument, what is clearly the not case: that it is unlawful discrimination on the basis of gender identity to reserve, say, membership on a girls’ soccer team to biological females. If boys who think they’re girls must be eligible for membership on that team, then it would clearly be discrimination on the basis of gender identity to bar boys who know they’re boys from being on the team. After all, the only distinction between the two sets of boys is gender identity. How could one set of boys be allowed to compete for the girls’ team and the other set be barred from doing so if Title IX forbids discrimination on the basis of gender identity?
So one ironic result of the Obama administration’s ill-conceived and lawless transgender campaign under Title IX would be to put an end to women’s sports.
I wonder if the elite progressive parents who won’t object to having boys shower with their daughters won’t countenance the prospect that their daughters will lose their opportunities for college sports scholarships.
(The attentive reader might recall note that I’ve made a similar argument about how the Obama administration’s position would mean an end to any system of single-sex bathrooms and showers. The same argument applies equally to single-sex housing.)
May 10, 2016
It’s farfetched to think that the Obama administration is actually interested in enforcing a misreading of Title IX that would consistently require that schools receiving federal funds treat “transgender students consistent with their gender identity.”
Consider these examples:
1. A high-school boy tells a school counselor that he identifies as a female but that he’d like to continue using the boys’ restrooms and showers (perhaps because his appearance remains fully male, perhaps because he’s be uncomfortable using the girls’ facilities, perhaps because he has a modicum of respect for the privacy of his female classmates).
Do you really think that the Obama administration expects the school to bar the boy from using the boys’ facilities and to require him to use the girls’ facilities (or a single-stall room)? Do you think that such a school would be threatened with the loss of federal funds? Ridiculous.
So what the Obama misreading of Title IX really means is that students who identify as transgender have the option—unavailable to other students—of using either the boys’ or the girls’ facilities (or both).
2. A star player on the girls’ soccer team tells her coach that she now identifies as male. Must the coach kick her off the team, which (under the Obama misreading of Title IX) is open only to individuals who identify as female? Is that something that the Obama administration would countenance, much less require?
3. A young women enrolled at Mount Holyoke College decides she’s male. Must the college expel her, as the Obama administration’s Title IX position would require?
I’ll note that Mount Holyoke’s public stated policy is to admit both men who say they’re female and women who say they’re men—and to allow women who, after enrollment, decide to identify as men to continue at the college. I don’t see how that policy can be reconciled with the Obama administration’s reading of Title IX. But why hasn’t the Obama administration threatened Mount Holyoke?
Ruth Bader Ginsburg Defends North Carolina Law
May 11, 2016
Title VII of the Civil Rights Act of 1964 prohibits employers from (among other things) “discriminat[ing] against any individual with respect to his … terms [or] conditions … of employment, because of such individual’s … sex.” So-called Title IX, enacted in 1972, provides generally that no person “shall, on the basis of sex, be … subjected to discrimination under any education program or activity receiving Federal financial assistance.”
These laws, in short, make it unlawful for a broad range of employers, colleges and schools to discriminate on the basis of sex. They make no exception for restrooms or showers. So how is it, the mind besotted by modern confusions about “discrimination” might wonder, that it’s been long accepted that employers and schools may have single-sex restrooms and showers?
The obvious answer is that a system of single-sex restrooms and showers doesn’t discriminate on the basis of sex but instead recognizes and accommodates the legitimate privacy concerns that arise from the basic biological differences between the sexes. This is an elementary point that everyone used to recognize—yes, even Ruth Bader Ginsburg, who wrote in 1975 that single-sex restrooms were entirely compatible with a norm of nondiscrimination on the basis of sex:
Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.
(H/t Eugene Volokh.)
To be sure, individuals who identify as transgender have privacy interests that merit reasonable accommodation as well (such as the single-unit facilities that the Obama administration and transgender ideologues reject). But it’s impossible to graft onto an existing system of single-sex restrooms and showers a uniform right of “transgender” individuals to the facilities “consistent with their gender identity” without trampling on the privacy interests of other individuals. And it’s absurd to claim that Title VII and Title IX somehow require this trampling.
DOJ Transgender Ideologues Hide Behind Sexist Stereotypes
May 12, 2016
In defense of the Obama administration’s ill-founded claims that Title VII, Title IX, and VAWA all require that “transgender” individuals be treated “consistent with their gender identity,” Vanita Gupta, the acting head of DOJ’s Civil Rights Division, declared the other day:
Transgender men [i.e., women who identify as men] are men — they live, work and study as men. Transgender women [i.e., men who identify as women] are women — they live, work and study as women. [Emphasis added.]
Gupta thus starkly demonstrates the point that I made in my National Review (magazine) article on the Fourth Circuit’s (thoroughly confused) transgender ruling:
The foundational premise of the transgender agenda is that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective conception of gender identity is the genuine reality that demands recognition and respect — including the use of wrong pronouns, thus yielding such absurdities as, from The New Republic, “She . . . tried to castrate herself by tying off her testicles.” That premise, with its disjunction between reality and perception, is a stark illustration of what everyone used to recognize as lunacy. But the Obama administration now claims that federal statutes adopted decades ago embrace and compel that lunacy.
But let’s set aside that foundational lunacy. Let’s also set aside that North Carolina’s H.B. 2 clearly does not discriminate on the basis of gender identity. Let’s further set aside the elementary fact that a man’s self-identification as female does nothing to lessen the privacy and safety concerns that women and girls have when he tries to shower with them (or when, as the transgender folks implicitly concede—point 2 here—he has a male appearance when clothed but insists on using the women’s restrooms).
Let’s ponder instead what Gupta might possibly mean by saying that “transgender men … live, work and study as men” and that “transgender women … live, work, and study as women.”
In an age in which sexist stereotypes are forbidden, what does Gupta think that it means to “live, work and study as men”? Obviously, the Obama administration would never embrace the heteronormative prejudice that part of living as a man might include wanting to date women. So let’s take some simpler examples: If a women who thinks she’s a man is attending a women’s college, is she living and studying as a man? If a girl who thinks she’s a boy is playing on a girls’ sports team, is she living as a boy? One would certainly think not. But why then hasn’t the Obama administration, as part of its aggressive enforcement agenda, threatened supposedly single-sex colleges like Mount Holyoke that admit women who identify as men (and that don’t expel women who, after enrollment, first come to identify as men)? Why hasn’t it told high schools that girls who identify as boys can’t play on the girls’ sports teams?
Contradicting Gupta, GLAAD tells us that gender identity “is a person’s internal, personal sense of being a man or a woman (or someone outside of that gender binary)” (emphasis added)—and thus evidently not something that is necessarily reflected in outward action. Indeed, GLAAD makes clear that while “most transgender people seek to bring their bodies more into alignment with their gender identity” (emphasis added), trying to do so is not essential to being transgender.
Does living as a man mean wearing distinctively male clothing? What permissible meaning would that question even have for the Obama administration? If a woman who identifies as a man prefers to wear androgynous clothing, is she therefore not transgender under Gupta’s standard?
At bottom, all that Gupta’s puddle of goo really seems to mean is that a woman lives, works, and studies as a man, and that a man lives, works, and studies as a woman, when each wants to use the restrooms and showers of the opposite sex.
Ed Whelan is president of the Ethics and Public Policy Center.