Fourth Circuit Inflicts Sex Change on Title IX—Part 3 (On ‘Discrimination’)

by Ed Whelan

See Parts 1 and 2

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. 

Bench Memos

NRO’s home for judicial news and analysis.