Will the Supreme Court Rein in the Department of Education’s Transgender Locker-Room Edict?

by Gail Heriot

The Department of Education’s transgender-bathroom order stretches Title IX past the breaking point.

The right to be different is what freedom is all about. Freedom-loving Americans should therefore stoutly resist government efforts to force conventional notions of masculinity or femininity on private citizens.

But there isn’t much of that going on these days. Instead we’re getting something that Americans should resist at least as forcefully: Bureaucratic edicts that create legal obligations out of thin air. A particularly egregious example is the Department of Education’s transgender locker-room policy.

The Supreme Court is being asked to examine that policy this term. Monday was the public’s first chance to learn whether it had decided to do so. But the only news is that there is no news. The Court is evidently still considering the matter. Here’s hoping that it decides to take the case soon.

Gloucester County School District v. G.G. concerns an anatomically female student who psychologically identifies as a boy and wants to use the boys’ showers and locker room. Department of Education (DOE) told G.G.’s largely rural Virginia school district that it must agree if it wants to keep its federal funding.

DOE is making this requirement up. Alas, the U.S. Court of Appeals for the Fourth Circuit held that it must defer to DOE’s expertise in interpreting the law. The school district is now seeking the opportunity to argue that the Fourth Circuit’s deference was in error.

A longstanding American custom holds that communal restrooms, locker rooms, and showers should be separated by sex. Up until very recently, nearly everyone understood sex to be a biological concept and anatomy to be its primary indicator.

No law required communal facilities to conform to this custom. In theory, the owners of such facilities could choose some other determinant — like the newly popular concept of “gender identity” or even astrological sign. But few deviated from the custom.

The DOE is now uprooting this custom and replacing it with a one-size-fits-all mandate. Under its policy, henceforth, federally funded schools must separate students based on gender identity rather than actual sex in assigning intimate facilities. Put more clearly, anatomically intact males must be permitted to use the restrooms, locker rooms, and showers for females if they say they identify psychologically with females (and vice versa).

DOE claims to be simply interpreting a regulation issued under Title IX of the Education Amendments Act of 1972. But DOE’s interpretation is simply implausible. Neither Title IX nor the regulation at issue mandates putting boys in girls’ showers. President Gerald Ford, who signed the regulation into law in 1975, would be astonished at this “interpretation.”

Title IX bans sex discrimination only. Despite diligent efforts, I have not come up with any near-in-time examples where “sex” or “discrimination” was used as DOE now demands.

To the contrary, for decades, in the LGBT community and elsewhere, terms like “transgender” and “gender” have been used to contrast with “transsexual” and “sex.” According to this usage, a “transsexual” person has undergone a “sex-change operation,” while a “transgender” individual simply shares habits and traits with the opposite sex. Sex and gender identity are thus different.

One of the original transgender activists, Virginia Prince, an anatomical male who dressed and lived as a woman, put it this way in 1969: “I, at least, know the difference between sex and gender, and have simply elected to change the latter and not the former. If a word is necessary, I should be termed ‘transgenderal.’”

Significantly, the language of the 1975 regulation is permissive, not mandatory. It states that schools “may” maintain “separate toilet, locker room, and shower facilities on the basis of sex,” so long as they are comparable. Earlier Supreme Court cases had established that separate is inherently unequal in the context of race. The regulation simply clarifies that sex is different. With sex, separate intimate facilities are a reasonable privacy and safety protection and thus permissible.

There was no need for similar regulations authorizing schools to maintain separate facilities on the basis of gender identity or even astrological sign for two reasons: Title IX did not cover those classification schemes, and nobody would have dreamed of using them back then anyway. But that doesn’t mean schools were forbidden to.

In the absence of congressional action, the Department of Education cannot unilaterally impose its will.

Whether one believes DOE’s mandatory policy should be the law is not the point. It is not the law, and this is a nation of laws, not bureaucrats. Congress may pass such a law if it finds it desirable. But in the absence of congressional action, the Department of Education cannot unilaterally impose its will.

Trying to help a transgender student is often a delicate matter. The transgender policy makes the job harder by tying the hands of teachers and principals. Sometimes, in a local school principal’s judgment, the best solution may be exactly what DOE purports to require: Let him use the intimate facilities assigned to his “preferred sex.” Sometimes the students who must share these facilities with him don’t mind.

But many cases, the affected students will feel their privacy or sense of security has been violated. Their feelings matter, too. Hence, sometimes the best thing may be to keep him with the members of his actual sex. In still other cases, the right solution may be to assign him to single-user facilities or to faculty facilities. Every case is different.

The difficulties are compounded by the fact that, with precious few exceptions, one’s actual sex is either male or female. Two restrooms, two locker rooms, and two shower facilities are sufficient. On the other hand, gender is a squirrelly concept. In the UCLA’s National Transgender Discrimination Survey, 31 percent of transgender respondents identified either strongly or somewhat with a “Third Gender.” Similarly, 38 percent identified with “Two Spirit” — presumably meaning that at times they identify as female and at other times they identify as male. If gender identity rather than sex is to govern, how does DOE propose that schools deal that complexity?

This is not Left/Right issue. Organizations as far left as the Women’s Liberation Front and as far right as the Eagle Forum Education and Legal Defense Fund have filed friend-of-the-court briefs urging the Court to intervene. Rather, this is about the rule of law. Can government agencies “interpret” the law to be whatever they want it to be? Or are they obliged to enforce it as written and agreed to by our elected representatives?

Gloucester County School District v. G.G. is the furthest along of several similar cases filed in federal courts around the country. The Court should seize this opportunity to rein in the Department of Education.

The rule of law is about preventing those in positions of authority from exercising arbitrary power. At one time or another, it protects us all, certainly very much including transgender people. No doubt, the rule of law has been taking it on the chin lately. But if the Supreme Court stands idly by as it is further chipped away at, we will all miss it when it’s irretrievably gone.

— Gail Heriot is a University of San Diego law professor and a member of the U.S. Commission on Civil Rights.