Published May 10, 2016
National Review - May 23, 2016 issue
In a 2–1 panel ruling in mid April, a federal appellate court decided (or at least seemed to think that it decided) that G.G., a girl who identifies herself as male, has a legal right to use the boys’ restrooms at her high school in rural Gloucester County, Va. In so doing, the panel’s majority, consisting of two appointees of President Obama, kowtowed to the Obama administration’s radical claim that federal law requires any college or school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.”
Never has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception.
In 1972, Congress enacted the federal law known as Title IX. Title IX provides generally that no school that receives federal funding — a category that includes public grade schools and high schools as well as nearly all colleges, public or private — may “discriminat[e]” “on the basis of sex.” Everyone understood from the beginning, and the Obama administration still agrees, that Title IX allows schools to have single-sex restrooms, locker rooms, and showers. A regulation dating from 1975 says exactly that — a school “may provide separate toilet, locker room, and shower facilities on the basis of sex” — and goes on to specify only that “such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex” (emphasis added).
Pushing the transgender agenda through the entire alphabet of the federal bureaucracy has been a high priority for the administration in President Obama’s second term. So it was that in January 2015 an obscure functionary named James A. Ferg-Cadima, in his temporary capacity as acting deputy assistant secretary at the Department of Education, signed his name to a letter and sent that letter to G.G. (and to various transgender activists). In his letter, Ferg-Cadima made two cursory legal claims on behalf of the department. First, he declared that Title IX’s ban on discrimination on the basis of sex includes a ban on discrimination on the basis of gender identity. Second, he asserted that schools that provide “sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes” must “treat transgender students consistent with their gender identity.”
Ponder for a moment some examples of what Ferg-Cadima’s second claim means for schools that receive federal funding. A young man who says his gender identity is female must be offered a college dormitory room with roommates who are women (irrespective of the wishes of those roommates). An athlete who is biologically male in all respects must be allowed to compete for a position on a women’s sports team if he identifies himself as female. A first-grade girl who thinks she’s a boy can use the boys’ bathroom. And, yes, high-school boys who say they’re transgender girls may use the girls’ locker rooms and showers on the same terms, and at the same time, as the girls do — and vice versa, of course, for girls who say they’re transgender boys.
Not surprisingly, this insanity has no plausible basis in Title IX. Let’s assume, for the sake of argument, that Ferg-Cadima is right in his first claim: that Title IX actually forbids discrimination on the basis of gender identity. On any coherent account of what discrimination is, that assumption thoroughly defeats, rather than supports, Ferg-Cadima’s claim that “transgender students” must be treated “consistent with their gender identity.”
A person discriminates on the basis of a trait when he takes that trait into account in making a decision (at least when there is no compelling or inherent justification for doing so), and he doesn’t discriminate when he disregards the trait. Similarly, a policy discriminates on the basis of a trait when it makes that trait relevant to how a person is treated, and it doesn’t discriminate when it treats the trait as irrelevant. So, for example, a person 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. Likewise, a person discriminates on the basis of gender identity when he factors a job applicant’s gender identity into his hiring decision — when, for example, he refuses to hire a woman because she says she identifies as male — and he doesn’t discriminate on the basis of gender identity when he disregards her gender identity in deciding whether to hire her.
But in the context of single-sex bathrooms, locker rooms, and showers, the concept of discrimination on the basis of gender identity plays out very differently from what the transgender ideologues contend. In this context, a school complieswith the (hypothetical) norm of nondiscrimination on the basis of gender identity when it disregards a student’s gender identity and instead assigns the student to the facilities that correspond with his biological sex.
In other words, it is the 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.)
The unsound proposition that separate facilities assigned by biological sex involves discrimination on the basis of gender identity collapses into incoherence. If a boy who identifies as female has a right under Title IX to use the girls’ restrooms and showers, then it would clearly be discrimination on the basis of gender identity to bar a boy who identifies as male from also using them. After all, the difference between these two biological males is that they have different gender identities. How could one of the males be allowed to use the girls’ facilities and the other be barred from doing so if Title IX bars discrimination on the basis of gender identity? In short, contrary to everyone’s (including the Obama administration’s) understanding of Title IX, the transgender illogic would disallow any system of single-sex facilities to survive.
Let’s now look at G.G.’s case. G.G. is a girl in all biological respects who identifies herself as male and is trying to live her life as a boy. After she told school officials that she was a transgender boy, her high school barred her from using the boys’ restroom and instead built three single-stall restrooms that were available for her (and other students of either sex) to use. Dissatisfied with this accommodation, G.G. sued the school board under Title IX.
The federal district court ruled that the 1975 regulation barred G.G.’s claim because the school’s separate restrooms for boys and girls fell squarely within its terms. The school board having won on this question, the district court had no need to address additional alternative grounds to decide for the school board.
On appeal, the Fourth Circuit majority stated at the outset of its opinion that “the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.” But its own torrent of confusion sidetracked it from ever reaching that fundamental question. The Education Department’s primary argument was that the school’s restroom policy violated Title IX. In a secondary argument, it contested the district court’s holding that the school board could win under the 1975 regulation alone. The department agreed that the 1975 regulation was valid and operative, but it claimed that the regulation was silent and ambiguous on what the terms “sex,” “students of one sex,” and “students of the other sex” meant. It had discretion, it claimed, to construe the regulation to mean that students who identify as transgender have the “sex” that is the same as their gender identity — the opposite, in other words, of their biological sex. (The only source the department cited, Ferg-Cadima’s letter, didn’t even mention or refer to the 1975 regulation, much less interpret it in this way.) Under this reading, a school’s single-sex restrooms would fall within the protection of the 1975 regulation only if boys who identify as girls are allowed to use the girls’ restrooms (and vice versa).
According great deference to the department’s interpretation of its own regulation, the majority held that even though “sex” in the 1975 regulation was best interpreted as biological sex, the department’s alternative interpretation wasn’t foreclosed.
There is no point in contesting the majority’s implausible holding on this matter, for, as the department’s brief recognized, that holding, if correct, would establish only that the 1975 regulation didn’t deliver a victory to the school board. So it was then incumbent on the majority to address the fundamental question: whether the school’s bathroom policy did in fact violate Title IX — whether, in short, Ferg-Cadima was right to claim that Title IX requires that schools make single-sex restrooms (and other facilities) available to “transgender students consistent with their gender identity.”
But in an astounding botch (or was it a deliberate blunder?), the majority failed to answer that central question. Had the court done so, it would have had to decide whether Ferg-Cadima’s claim about Title IX’s meaning provided the best reading of that law. On that question of statutory meaning, the court, under well-established precedents, would not have been able to accord any deference to an administrative interpretation as informal as Ferg-Cadima’s letter.
The school board merited an easy victory on the question of Title IX’s meaning. There is nothing in Title IX that can remotely be read to require schools to allow boys who identify as female to use the girls’ facilities, or to allow girls who identify as male to use the boys’ facilities. Again, even if we assume that Title IX bars discrimination on the basis of gender identity, a school’s practice of reserving single-sex bathrooms, locker rooms, and shower facilities to those of the corresponding biological sex does not involve any discrimination on the basis of gender identity. On the contrary, Ferg-Cadima’s proposition that schools must “treat transgender students consistent with their gender identity” discriminates on the basis of gender identity.
The appellate court ordered the case sent back to the district court, which might still determine that the constitutional privacy interests of other students override G.G.’s right to use the boys’ restrooms. Or it might even determine that the appellate court’s failure to address the Title IX question leaves that matter for it to decide afresh.
Notwithstanding how feeble its misreading of Title IX is, the department is using its power over federal funding to bully vulnerable school districts around the country into revising their policies and practices on restrooms, locker rooms, and showers to comport with the transgender agenda. Intimidated by the threatened loss of funds and wary of the costs of litigation, many of those school districts are meekly surrendering and are in turn bullying parents and students who dare to raise concerns about the brave new regime. You can be sure that if the Fourth Circuit’s woefully defective ruling is permitted to stand, the department will use it to club more victims into submission.
The Education Department seems to be picking its fights and leaving the administration’s friends alone. Under its misreading of Title IX, secular women’s colleges that don’t admit men who identify as women, or that do admit or retain women who identify as men, are evidently in violation of federal law and ought to face the threat of having their federal funding terminated. It’s also curious that liberal Montgomery County, Md., a powerhouse suburb of D.C., seems to be facing no reprisals for its go-slow practices, even as an LGBT-activist member of the school board in nearby middle-class Fairfax County, Va., successfully enlisted the department to intimidate his board into submission. Might the administration be giving more weight to the privacy and safety interests of the children of the rich and influential than to those of everyday Americans?
The problems faced by those fraught souls who identify as transgender deserve our sympathy, and a compassionate response may well include efforts at accommodation such as the single-stall restrooms that G.G. was allowed to use. But the Obama administration and transgender activists have shown no interest in sensible compromises that give any weight to the privacy or safety interests of others. Never mind that the transgender policy on restrooms and showers makes it much easier for any man or boy with nefarious or mischievous purposes to gain access to the girls’ facilities.
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.
Under any theory of political accountability, it is appalling that the Obama administration would seek to impose its radical rewriting of Title IX through a bureaucratic diktat. And it is all the more appalling that any judges would be so confused or compliant as to acquiesce in this. But it’s no surprise that for those for whom the concepts of male and female have no core meaning, legal texts don’t either.
– Ed Whelan, the president of the Ethics and Public Policy Center, is a regular contributor to National Review Online’s Bench Memos blog. This article originally appeared in the May 23, 2016, issue of National Review.