Ethics & Public Policy Center

Fourth Circuit Inflicts Sex Change on Title IX

Published in National Review Online on April 27, 2016



In a series of posts on National Review Online’s Bench Memos blog, EPPC President Ed Whelan critiqued a federal appellate ruling that, if upheld, would mean that schools must allow boys who identify as female to use girls’ restrooms, locker rooms, and showers and must allow girls who identify as males to use the boys’ facilities.

Part 1

April 25, 2016

Last week I highlighted the divided ruling of a Fourth Circuit panel that held, in G.G. v. Gloucester County School Board, that a Virginia school discriminated “on the basis of sex” in violation of Title IX when it barred “G.G.,” a “transgender boy”—that is, a girl who identifies as a boy—from using the boys’ restroom. Let’s now take a deeper look.

In this post, I aim to present a concise account of the relevant background and the majority’s reasoning. In a follow-up post or two, I will explain why I believe that the majority is clearly wrong.

1. 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.” (Emphasis added.) Title IX sets forth a number of exceptions to that general rule, including (in section 1686) that it does not bar “maintaining separate living facilities for the different sexes.”

2. Implementing Title IX, a Department of Education regulation (“section 106.33”), adopted in 1975, states that a school “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” (Ponder for a moment what the state of affairs was between 1972 and 1975; I’ll return to that in the next post.)

3. In a January 2015 letter that it evidently sent to G.G. and various other recipients, an acting deputy assistant secretary in the Department’s Office for Civil Rights stated:

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. (Emphasis added.)

4. The Fourth Circuit majority (Obama appointee Henry F. Floyd, joined by Obama appointee Andre M. Davis) determined that the Department’s regulation, “plainly … permits schools to provide separate toilet, locker room, and shower facilities for its male and female students” and “to exclude males from the female facilities and vice-versa.” (Slip op. at 19-20.) But, the majority claimed:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or a female for the purpose of access to sex-segregated restrooms. [Slip op. at 20.]

Therefore, “the Department’s interpretation [of its regulation in the January 2015 letter] is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.” (Slip op. at 20.) (I’ll discuss Auer deference in the next post.) From its brief consideration of the definition of “sex” in two dictionaries “from the drafting era,” the majority concludes:

Although these 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,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.”Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation.  [Underlining in original; italics added; footnote omitted.]

5. The majority says that it agrees with dissenting judge Paul Niemeyer (whose dissent I quoted from extensively in my previous post) that the word “‘sex’ should be construed uniformly throughout Title IX and its implementing regulations.” (Slip op. at 26.) As we shall see, its reasoning is in fact incompatible with that elementary proposition.

6. The majority also states that because G.G. “does not seek here, and never has sought, use of the boys’ locker room” and that “Only restroom use is at issue in this case.” (Slip op. at 7 n. 2.) As we shall see, those hedged statements can’t detract from the reality that the majority’s reasoning dictates the same result for locker rooms and showers.

 

Part 2

April 25, 2016

The Fourth Circuit’s reasoning (see point 4 in my Part 1 post) is demonstrably wrong.

Both the majority and the Obama administration purport to agree that Title IX allows schools receiving federal funds to maintain separate toilet, locker room, and shower facilities for males and females. Their position is that individuals who have a gender identity that is different from their biological sex are entitled under Title IX to use the facilities “consistent with their gender identity.”

But if “on the basis of sex” in Title IX includes “on the basis of gender identity,” the Department of Education’s 1975 regulation that recognizes that Title IX allows schools to “provide separate toilet, locker room, and shower facilitieson the basis of sex” collapses into incoherence.

If the majority and the Obama administration are right that a boy who identifies as female has a right under Title IX to use the girls’ bathrooms, locker rooms, and shower facilities, then it would be discrimination on the basis of gender identity to bar a boy who identifies as male from having the same access. After all, the difference between the 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, the Department of Education’s 1975 regulation (which is still operative) is incompatible with a reading of Title IX that would extend its bar on sex discrimination to discrimination on the basis of gender identity, for such a ruling would nullify the very protection that regulation recognizes or provides.

The majority is therefore wrong to invoke so-called Auer deference. As the majority correctly explains, under the (controversial and contested) Auer rule, the courts must accept an agency’s interpretation of its own ambiguous regulation unless the agency’s interpretation is plainly erroneous or inconsistent with the regulation or governing statute. The Department’s January 2015 letter is not entitled to Auer deference for the simple reason that the interpretation offered there of its 1975 regulation is plainly erroneous and inconsistent with that regulation. In other words, when intelligently read, the 1975 regulation is not ambiguous in any relevant respect.

(I won’t address the further question whether something as informal and insubstantial as a letter from a deputy assistant secretary—or, rather, an acting deputy assistant secretary—is the sort of thing that would be entitled to Auer deference in any event.)

More to come in a Part 3 post.

 

Part 3 (On ‘Discrimination’)

April 27, 2016

Let’s explore the Obama administration’s position that Title IX requires that schools receiving federal funding allow boys who identify as female to use the girls’ bathroom, locker room, and shower facilities (and allow girls who identify as male to use the boys’ facilities).

As I will show in this post, reserving girls’ bathrooms, locker rooms, and shower facilities for biological females (and boys’ 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 IX—in other words, that schools 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, as I will show in my next post, it is a baseless and absurd reading of Title IX.

1. Some brief background:

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.” (Emphasis added.)

The Department of Education has never undertaken notice-and-comment rulemaking or any other formal procedure in support of its newfound position that Title IX forbids reserving sex-assigned bathrooms, locker rooms, and shower facilities to those of the corresponding biological sex. Instead, it adopted that position in bureaucratic stealth and made it public in a January 2015 letter that acting deputy assistant secretary James A. Ferg-Cadima sent to various persons.

Ferg-Cadima’s letter contains only the barest of legal assertions: He states that Title IX “prohibits recipients of Federal financial assistance from discriminating on the basis of sex, including gender identity.” He also declares:

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. [Emphasis added.]

(His letter also includes two footnotes with string citations that, though not appended to either of the propositions I quote, are presumably thought to support them.)

2. Let’s assume for the sake of argument that Ferg-Cadima’s first proposition is right: that Title IX actually forbids discrimination 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, 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. Similarly, a person 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, a school complies with the 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.

(To be clear: Discrimination, properly understood, is not an all-purpose epithet for anything one dislikes or regards as unjust. So my observation that having separate facilities for the biological sexes doesn’t discriminate on the basis of gender identity is not meant to dispose of other objections to such facilities.)

In other words, Ferg-Cadima’s second proposition—that, when it comes to access to bathrooms, locker rooms, and showers, a school “generally must treat transgender students consistent with their gender identity”—does not flow from or implement the principle of nondiscrimination on the basis of gender identity that he asserts. Instead, Ferg-Cadima’s nondiscrimination rhetoric masks the reality that he is advancing the substantive claim that, on these access questions, Title IX calls for gender identity to trump biological sex.

As I will discuss in my next post, that substantive claim about the meaning of Title IX is unsustainable.

* 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.) Nothing in the body of my post involves this alternative and somewhat narrower concept of discrimination.

 

Part 4 (Meaning of Title IX)

April 27, 2016

As promised, I will show in this post that, contrary to the claim set forth in acting deputy assistant secretary James A. Ferg-Cadima’s January 2015 letter, Title IX does not require that, with respect to single-sex restrooms, locker rooms, and showers, schools “treat transgender students consistent with their gender identity.”Let me note at the outset that the Fourth Circuit majority, as a result of a massive botch that I will discuss in my Part 5 post, utterly failed even to address this central issue in its opinion in G.G. v. Gloucester County School Board.

Some observations:

1. It’s crystal-clear that Ferg-Cadima’s supposed interpretation of Title IX, set forth in a single sentence in a letter he sent to various individuals, would not be entitled to the judicial deference that, under the Chevron doctrine, is extended to the products of notice-and-comment rulemaking and of formal adjudication. See United States v. Mead (2001). Indeed, completely apart from the substance of Ferg-Cadima’s position, it’s difficult to imagine an administrative interpretation that, by its informality and lack of rigor, would be less likely to qualify for any judicial deference.

So the straightforward question for the courts is whether Title IX is best read as requiring that schools “treat transgender students consistent with their gender identity” for purposes of single-sex bathrooms, locker rooms, and showers.

2. Title IX prohibits “discrimination” “on the basis of sex.” As I explained in my Part 3 post, even if we assume for the sake of argument Ferg-Cadima’s proposition that discrimination on the basis of sex includes 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, the proposition that schools must “treat transgender students consistent with their gender identity” discriminates in favor of gender identity.

In short, there is zero textual basis in Title IX for requiring 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.

3. Additional text in Title IX further refutes Ferg-Cadima’s claim that Title IX requires that schools “treat transgender students consistent with their gender identity.” For example, section 1686 provides that Title IX shall not be construed “to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” Can anyone seriously contend that Title IX means that schools would qualify for this exception only if they housed boys who identify as female together with girls? Ridiculous.

4. It’s worth noting that there is nothing in the Fourth Circuit majority’s reasoning about the Department of Education’s 1975 regulation that remotely suggests that Title IX is best read to require that schools “treat transgender students consistent with their gender identity.” On the contrary, the Fourth Circuit majority acknowledges that “the word ‘sex’ was understood at the time the [1975] regulation was adopted”—a mere three years after Title IX was enacted—“to connote male and female and that maleness and femaleness were determined primarily by reference to … ‘biological sex.’” (Applying a very deferential standard, it manages to find only that the Obama administration’s interpretation of the word “sex” in the 1975 regulation is permissible.)

 

Part 5 (Permission vs. Restriction)

April 27, 2016

As I pointed out in my Part 4 post, the Fourth Circuit majority in G.G. v. Gloucester County School Board utterly neglected to address the fundamental question whether Title IX requires that schools allow boys who identify as female to use the girls’ restrooms, locker rooms, and showers facilities and allow girls who identify as male to use the boys’ facilities.In an astounding botch, the Fourth Circuit majority somehow thought that its deference to the Obama administration on the meaning of a 1975 Department regulation made it unnecessary to address the meaning of Title IX. But that conclusion reflects an elementary misunderstanding of the 1975 regulation.

The 1975 regulation implementing Title IX states:

A [school that receives federal financial assistance] may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex. [Emphasis added.]

The clause that I have italicized was at issue in the Fourth Circuit case. The simple fact to note about this clause is that it is entirely permissive, not restrictive: It says what a school may do, not what it may not do. A school, in other words, might act outside what that clause allows, but it is impossible to violate that clause. Any actual restriction of the school’s conduct must come from some other legal provision.

To put the point more concretely:

The district judge and the dissenting Fourth Circuit judge, having determined that the Gloucester County School Board was “provid[ing] separate toilet, locker room, and shower facilities on the basis of sex” within the meaning of the 1975 regulation, had no need to go further: the school board’s conduct, in their judgment, fell within the scope of what the regulation allowed. (The legality of the regulation was not at issue; only its meaning was.)

But by deferring (wrongly) to the Obama administration’s position that the word “sex” in that regulation could permissibly be construed to mean gender identity, the Fourth Circuit majority should have concluded only that the school board could not claim the protection of the regulation. The Fourth Circuit majority should then have turned to the question whether Title IX barred the school board’s policy. Had it done so, as I discuss in my Part 4 post, it would have had to deliver a victory to the school board.

I’ll note that the Obama administration’s amicus brief in the case clearly supports my observation that the Fourth Circuit, in order to rule against the school board, was obligated to address whether Title IX forbade the school board’s policy. That brief’s primary argument is that the school board’s policy does violate Title IX. Its secondary argument is merely that the 1975 regulation does “not preclude” G.G.’s Title IX claim—that it “does not … give the schools the authority to decide that only those males who were assigned the male sex at birth can use the boys’ restroom.” (Emphasis added.) The brief’s secondary argument clearly recognizes that it remained G.G.’s obligation to establish that Title IX bars the school board’s policy.

In sum, the Fourth Circuit majority badly blundered in failing to realize that it had to move to the central question whether Title IX bars the school board’s policy. Its opinion is woefully incomplete.

 

Part 6 (Some General Observations)

April 28, 2016

 

Part 7 (A Postscript)

May 4, 2016

The school board has filed a petition for en banc rehearing of the Fourth Circuit panel’s divided ruling in G.G. v. Gloucester County School Board. Given the recomposition of the Fourth Circuit during the Obama presidency, I can’t say that I’m optimistic about the petition’s prospects, but we’ll see.

I think that the best path going forward is for district judge Robert G. Doumar, on remand, to again deny preliminary injunctive relief—and to do so this time on the ground that the school board’s policy is permissible under Title IX and that the majority’s ruling, carefully read, does not hold otherwise.

I’ll mention here as well that I’ll have a long piece in the forthcoming issue of National Review (out tomorrow, I think) that draws on this series of posts but that is designed (as much as the majority’s mess allows) for a more general audience.

Ed Whelan is president of the Ethics and Public Policy Center.

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