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Regulating Identity

In late October, the Sunday New York Times reported that the Department of Health and Human Services was considering a regulation stating that “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.” According to the leaked document, “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” The Times article ended with a no-holds-barred attack on the proposal from former Assistant Secretary of Education for Civil Rights, Catherine Lhamon:  the proposed definition “quite simply negates the humanity of people.”

The next day the Times published an op-ed by Jennifer Finney Boylan entitled “Trump Cannot Define Away My Existence.”  It began with this dramatic sentence: “I was surprised to learn on Sunday morning that I do not exist.” The author claimed the not-yet-proposed rule would “empower bullies,” and cause “vulnerable, frightened children [to] come home in tears—or bruised, or not at all.”  Some of these children might decide to throw themselves “beneath the wheels of a truck” rather than “live in such a world.” Writing in The New Yorker Masha Gessen offered a similarly dire prediction: the mere threat of a revised regulation would prove “traumatic” for “transgender and intersex people.” “The revocation of rights feels violent,” she explained, “because it is violent.”  Protestors in front of the White House chanted “We will not be erased.”  #WontBeErased spread throughout the Twittersphere.

That a leaked draft of a proposed administrative rule could “traumatize” so many people and potentially “erase” up to a million and a half citizens should lead us to wonder what has happened to our politics and our understanding of government in a liberal democracy.  In part, of course, this controversy reflects intense partisan polarization augmented by well-deserved distrust of the President and his entire administration. We also see here the remarkable rise in prominence of an issue seldom discussed in politics until a few years ago, and the profligate misuse of the term “trauma.” Above all we see the interconnection between identity politics and federal regulation of schools, employers, and subnational governments.

Most of the federal rules and guidelines on transgender issues have been established under civil rights statutes, especially Title VII of the 1964 Civil Rights Act and Title IX of the 1972 Education Amendments. How have laws designed to open employment and educational opportunities to women become enmeshed in what has become known as the “bathroom wars”? In my recent book The Transformation of Title IX, I show how the purpose of that law slowly changed from eliminating institutional barriers facing women in education to attacking all stereotypes about sex and gender held by students, potential students, faculty, staff, and the public at large.  This meant focusing not on education as conventionally understood, but on re-educating everyone about sex roles, sexuality, and (with transgender issues) the fluidity of sex and gender. As former Assistant Secretary Lhamon explained, “The bathroom question was never just about a bathroom.  It was about who that child is and how that child will be perceived and seen.” Federal regulation, in other words, is now about identity—which means that we must not only recognize whatever identity a person chooses, but must strive to change the way everyone else sees that person. This, in turn, requires us to change the way almost all of us think about what “sex” means—a big job for a few federal administrators wielding short, ambiguous statutory phrases!

To be sure, there are several reasons to think that the particular revision floated by the Trump Administration is ill-advised.  It attempts to impose the same rules in much different contexts—employment, health care, elementary and secondary schools, colleges and universities, and public facilities such as bathrooms.  Like the transgender advocates who so strenuously oppose it, the proposal fails to recognize major differences within the broad “transgender” category: the very small number of “intersex” individuals who have abnormal chromosomes or were exposed to unusual hormones in utero; adults who have undergone sex change surgery along with hormone treatment; and children experiencing what is known as “gender dysphoria.”  Some of these children will eventually grow more comfortable with their biology. Of these, some will decide they are gay, not transgender. How many will continue to believe that their gender does not match their biological sex? We simply do not know. Given these uncertainties and varying contexts, trying to devise a uniform national formula is the type of “one size fits all” policy long decried by conservatives.  Why not leave these subtle and difficult decisions to the institutions closest to the ground?

Transgender rights advocates frequently claim that the HHS proposal would strip transgender students of well-established rights.  While this might make for powerful rhetoric, it is simply not true. Until 2014 President Obama insisted that existing civil rights laws do not cover discrimination based on either sexual orientation or gender identity.  He supported legislation to add such coverage to civil rights statutes. Only when it became clear that this legislation would not pass did he give in to pressure from advocacy groups to do the same thing through administrative action.  In 2014 the Department of Justice—which just a few years ago had defended the FBI’s authority to refuse to hire a transgender employee—announced that its policy has “evolved over time,” and that it would now interpret Title VII to prohibit discrimination on the basis of “gender identity.”  

The Department of Education’s Office for Civil Rights did a similar about-face on Title IX, but without admitting that its position had changed.  (Despite its many innovations, OCR never admits to doing anything new.) In 2016 it issued a unilateral “Dear Colleague Letter” (DCL) demanding that access to all sex-segregated facilities—including bathrooms, showers, dormitories, and sports teams—be allocated on the basis of students’ gender identity (that is, their “internal sense of gender”) rather than biological sex.  No exceptions would be allowed: schools’ “desire to accommodate others’ discomfort cannot justify a policy” deviating from this federal command.

This novel policy had a short shelf-life.  Within a few months a federal district court judge in Texas ruled that OCR had exceeded its authority, and enjoined enforcement of the DCL. In February of 2017 the Trump Administration withdrew it.  In short, when it comes to education and Title IX, the “erasure” meme seriously distorts the history of civil rights law.

To the growing number of people who believe that students should be able to use sex-segregated facilities that match their gender identity, the question of the legal basis of this right is unimportant—they consider it unfair and inhumane to do anything else.  But for judges and administrators the question of legal authority cannot be so easily dismissed. Here it is important to distinguish two much different issues that are too often conjoined in the current debate. The first is whether transgender individuals can be denied benefits—usually jobs—because their “gender identity” does not match their biological sex.  For reasons laid out below, since 2000 most circuit courts have held that Title VII forbids such discrimination.

The second, more complicated issue is access to sex-segregated facilities.  No one claims that transgender students should be denied an education.  Rather, in the educational context the controversy revolves around how transgender students will be treated in those limited circumstances where schools are authorized to distinguish between male and female students. For example, Title IX specifically authorizes schools to “maintain separate living facilities for the different sexes.”  It allows father-son and mother-daughter events as long as they provide for “comparable activities” for “students of the other sex.” A non-controversial section of the Title IX regulations issued in 1975 explained that schools “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 opposite sex.”  Those 1975 regulations also authorized “separate teams for members of each sex,” as long as male and female students were provided equal athletic opportunity. The meaning of “equal athletic opportunity” was the subject of years of intense debate. But everyone agreed that separate teams were justified by the physiological differences between males and females. Later in 1975 Congress passed the “Javits amendment” to confirm this understanding.

The 2016 DCL mandated that when schools allocate access to these separate facilities and activities, they must do so on the basis of students’ internal “gender identity” rather than their physical attributes. In other words, when the statute and regulations say “sex,” those words must be interpreted to mean “gender identity.” This interpretation is especially odd since the term “gender identity” was invented specifically to distinguish it from “sex.”  To say, as OCR did in 2016 and transgender advocates insist today, that in those limited instances when schools are authorized to segregate by “sex,” they are required to segregate by “gender identity” is to rob those words of all meaning.  

So how did several agencies and a number of federal courts arrive at this incongruous interpretation of federal law?  The answer lies in the combination of a legal argument—that Title IX prohibits all forms of sex “stereotyping”—and in an institutional pattern–one that I have called “institutional leapfrogging.” Federal judges take one step, administrators another; rinse with rhetoric about respect for coordinate branches and repeat. Each branch incorporates the initiative of the other while deny they were doing anything new.  

Before 2000 few courts had held that Title VII of the Civil Rights Act prohibits employers from discriminating against transgender employees.  That changed relatively suddenly in the early years of the 21st century.  To extend civil rights protection to transgender employees, federal courts relied almost entirely on dicta in a plurality opinion announced by the Supreme Court in a 1989 Title VII case, Price Waterhouse v. Hopkins. There, four members of the Court agreed that failure to promote a woman because she had not acted in a sufficiently “lady-like” fashion constitutes sex discrimination. An employer violates Title VII if that employer’s decisions were “likely influenced by sex stereotyping.” According to Justice Brennan’s, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

Although the case did not involve gender identity, the wording of the plurality opinion suggests that transgender employees cannot be subject to adverse employment action simply because they refuse to conform to “sex stereotypes”—such as the expectation that men not wear dresses and makeup or insist upon being referred to as “she.”  If Fran can do this job, what difference does it make if Fran dresses like a man or a woman? This was a bit of a stretch—but not a huge one.

The Department of Education first addressed the transgender issue (albeit obliquely) in a 2010 DCL on bullying: “it can be sex discrimination if students are harassed either for exhibiting what is perceived as stereotypical characteristics for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.” As it investigated specific complaints about bullying, the agency extended its demands to cover the much different and more controversial issue, access to sex-segregated facilities.  It reached settlements with a few school districts on this topic, and then used these settlements to claim it had a long-standing policy on this topic. In its widely publicized Gavin Grimm decision, the Fourth Circuit deferred to OCR, relying on a letter from a lower-level enforcement officer ginned up to provide support for the transgender plaintiff in this case. Leapfrogging in action.

When the Trump administration withdrew the transgender DCL, transgender rights advocates could no longer rely on the “deference to agency expertise” argument.  Now they reversed course, denying that deference was due to the Department of Education, calling upon the court to engage in “de novo” interpretation of the law, and insisting that the statutory language (previously described as ambiguous enough to justify the DCL) was so clear that the Obama administration’s policy was mandated by Title IX.  The Fourth Circuit dismissed the case when Gavin Grimm graduated from high school. But two judges on that court appended an unusual memo describing Grimm as a “civil rights hero” who “knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination.” This case “is about much more than bathrooms,” they explained. “It’s about government validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity.”  “Validation of the existence and experiences of transgender people”—that, according to these judges, is a central responsibility of the federal government. Such judicial dicta bears a striking resemblance to the hyperbolic rhetoric cited at the beginning of this article.

In 2017 the Seventh Circuit endorsed a similar argument in Whitaker By Whitaker v. Kenosha Unified School District.  It held that both Title IX and the Equal Protection clause require schools to respect students’ gender identification when assigning them to sex-segregated facilities. Nowhere in its long opinion did the unanimous panel discuss the meaning of the key statutory word, “sex.” Instead, it focused entirely on the term invoked by the Supreme Court, “sex stereotyping.”  Echoing Justice Brennan’s plurality opinion in Price Waterhouse v. Hopkins, the Seventh Circuit panel insisted that Title IX, like Title VII, was designed “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  “By definition,” the court explained, “a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” A school “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”

To this the Whitaker panel added an Equal Protection argument. Whenever a state uses a sex-based classification, “the burden rests with the state to demonstrate that its proffered justification is exceedingly persuasive.” Here the harm done to the transgender student is severe, and the harm done to other students is “based upon sheer conjecture and abstraction.” Therefore, the school’s policy violates the Constitution. Rather than appeal the ruling, the school district settled the case for $800,000–$650,000 of which went to the student’s lawyers.

It is highly unlikely that Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh would ever accept such a broad reading of the Equal Protection clause.  But it could be many years before the Court hears a case clarifying its interpretation of Title IX; over the past 46 years the Court has only heard eight Title IX issues, none involving transgender rights.  Meanwhile we can expect many other lower court judges to endorse the Seventh Circuit’s “stereotyping” argument.

The appeal of this argument is readily apparent: no one wants to claim that they have acted on the basis of a stereotype; we pride ourselves in viewing each person as an individual.  But in the hands of some judges and administrators, cheered on by many advocacy groups and legal academics, the regulatory attack on stereotyping has been extended to an assault on almost all conventional understandings of sex, sex differences, and sexuality. No longer is the argument simply that our biology should not limit our opportunities and aspirations.  Now the argument is that gender and biology should be regarded as completely unrelated. The next step down this undeniably slippery slope is allowing athletes with male bodies to play on women’s teams.  If we continue down the path of insisting that biology should play no role in distinguishing between male and female, then the rationale for separate teams disappears.  That prospect should alarm defenders of women’s sports.That these policies are being imposed by judges and administrators interpreting vague statutory phrases rather than by elected legislators should alarm us all.

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