Obama Transgender Ideologues Imprison Themselves

by Ed Whelan

I’ve already explained in detail much of the illogic and incoherence that pervade the Obama administration’s claims that reserving single-sex restrooms and showers on the basis of biological sex violates Title VII and Title IX. The Obama administration also claims that North Carolina’s H.B. 2 discriminates on the basis of sex in violation of the federal Violence Against Women Reauthorization Act of 2013, and that VAWA claim is defective for the same reasons.

Plus, the Department of Justice’s reckless ideologues are now at war with themselves.

In her VAWA letter, Vanita Gupta, principal deputy in the Civil Rights Division, tells Frank L. Perry, head of North Carolina’s Department of Public Safety (DPS), that VAWA requires that “transgender individuals” be allowed to “access restrooms and changing facilities that are consistent with their gender identity in buildings controlled or managed by DPS or its sub-recipients.” The buildings controlled or managed by DPS include North Carolina’s prisons.

But DOJ has issued prison regulations, applicable to state prisons, that firmly reject any bright-line treatment of “transgender individuals” according to their gender identity. Indeed, on the very question whether to put a man who thinks he’s female (or a woman who thinks she’s male) in a men’s prison or a women’s prison, “the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.” Ditto for all “other housing and programming assignments,” which clearly include the assignment of shower facilities. Indeed, while generally prohibiting the practice, the regulations even leave open the possibility that “transgender” prisoners could be housed in “dedicated facilities, units, or wings solely on the basis of” their transgender status.

In short, DOJ’s prison regulations contradict DOJ’s unsound claim that reserving single-sex restrooms and showers on the basis of biological sex is unlawful discrimination under VAWA.


North Carolina Law Wins Under Fourth Circuit Transgender Ruling

by Ed Whelan

My National Review (magazine) article on the Fourth Circuit’s transgender/bathroom ruling from last month is now available on NRO. (My fuller set of posts on the ruling is collected here.)

The Fourth Circuit’s ruling is a confused mess, but its analysis actually cuts strongly in favor of North Carolina’s H.B. 2 law on access to single-sex multi-occupancy bathrooms and showers in public schools and government buildings. Let me briefly sketch why:

1. As I discuss in the article (and more extensively in this post), the Fourth Circuit never reached the legal question whether Title IX requires that schools allow boys who identify female to use the girls’ restrooms, locker rooms, and showers facilities and allow girls who identify as male to use the boys’ facilities. Instead, it seems to have thought (mistakenly) that its deference to a 1975 Department of Education regulation ended the legal work that it needed to do. So its ruling did not generate a Fourth Circuit precedent on the Title IX question.

2. The Fourth Circuit majority’s analysis of the Department regulation dictates a victory for North Carolina’s H.B. 2. Specifically, the majority ruled against the school board only because it applied the Auer standard of extreme deference to the Department’s interpretation of the word “sex” in its own regulation. The Fourth Circuit found that dictionary 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.’” But those definitions, it concluded, did not entirely foreclose the Obama administration’s new reading of sex as gender identity.

By contrast to an agency’s interpretation of its own regulations, DOJ’s informal interpretation of Title VII and Title IX has no plausible claim to judicial deference. (And it’s well settled that EEOC’s decisions also receive no judicial deference.) So the question in the HB2 matter is what is the best reading of the word “sex” in those laws. And the Fourth Circuit majority’s analysis, as well as every other indicator of what the word sex was best understood to mean in 1964 and 1972, cuts strongly in favor of reading sex to mean biological sex. 

3. In the end, though, this whole question doesn’t really matter in this context, for even if Title VII and Title IX and other federal laws were read to prohibit discrimination on the basis of gender identity, H.B. 2 doesn’t discriminate on the basis of gender identity—and nothing in the Fourth Circuit’s ruling suggests otherwise.

This Day in Liberal Judicial Activism—May 10

by Ed Whelan

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.”  After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

North Carolina Officials File Complaints for Declaratory Judgment

by Ed Whelan

This morning, North Carolina governor Pat McCrory and state secretary of public safety Frank Perry filed a complaint for declaratory judgment against the Obama administration’s baseless and ill-advised efforts to block North Carolina’s implementation of H.B. 2. This afternoon, Phil Berger, the president pro tem of the state senate, and Tim Moore, the speaker of the state house of representative, filed their own (much more extensive) complaint. Both complaints were filed in the same federal court (Eastern District of North Carolina, Western Division) and will presumably be consolidated. 

The remainder of this post (including below the fold) is the introduction from the Berger/Moore complaint:

1. When people find themselves in the intimate settings of public bathrooms, locker rooms, or showers, they expect to encounter only other people of the same biological sex. Until very recently, that simple expectation of bodily privacy would have been taken for granted. Yet when North Carolina sought to protect that expectation in law—by enacting the “Public Facilities Privacy and Security Act” (the “Act”), commonly known as HB2—a torrent of vicious criticism was unleashed against the State, its officials, and its citizens. The abuse has now reached its apex with the unprecedented threats by the United States Department of Justice (“Department”), the defendant here. Last week, the Department sent letters to North Carolina public officials and agencies informing them that, by complying with the Act, they were engaging in a “pattern or practice” of discrimination in violation of three federal civil rights laws. They were bluntly ordered to repudiate the Act within five calendar days—that is, by today—or else face enforcement actions that would drastically impact North Carolina, including the potentially catastrophic elimination of more than two billion dollars in federal funding. Instead of meekly complying, plaintiffs—the leaders of both chambers of the North Carolina General Assembly—have filed this declaratory judgment action.

2. A declaratory judgment is urgently needed for two basic reasons. First, it is needed to vindicate the sovereign right of North Carolina’s citizens to decide how best to protect their own bodily privacy and dignity in intimate public settings. Second, it is needed to instruct the Department in no uncertain terms that its overbearing abuse of executive authority flouts our Constitution’s limitations on federal power and tramples on the sovereign dignity of the States and their citizens.

3. The ideological extremity—and utter unworkability—of the Department’s position on the issues in this case is astonishing. Unlike the people of North Carolina, the Department believes that the only valid approach to issues of gender dysphoria is to allow anyone to use any communal public bathroom, locker room, or shower based solely on that person’s self-declared “gender identity.” Never mind that no federal statute or regulation remotely requires the Department’s policy. Never mind that the Department’s policy will inevitably lead to women and girls in public changing facilities encountering individuals who, whatever their gender identity, still have fully functional male genitals. Never mind that the Department’s policy, on its face, demands that North Carolina allow biologically male prison inmates who identify as females to take showers with biologically female inmates—which, besides being absurd and dangerous, also violates the Department’s own federal prison regulations. Apparently, the Department believes that these obvious social costs are outweighed by the policy’s purported psychological benefits to persons of conflicted gender identity.

4. The people of North Carolina came to a different and far more sensible conclusion, one they enacted in the law at issue in this case. Despite being grossly mischaracterized in the media, the Act does not embody hostility towards those whose gender identity differs from their biological sex. To the contrary, the Act specifically allows a flexible system of single-occupancy facilities for persons who do not wish to use public facilities designated for their biological sex. The Act also leaves in place existing provisions allowing a person to obtain a sex-change operation, make a corresponding change to their birth certificate, and then use the public facilities consistent with their new anatomy. And the Act allows private businesses and other entities to determine their own bathroom policies—including, if they wish, policies closer to the Department’s views.

5. But the Act also reflects concern and compassion for the many North Carolina residents—especially girls and women—who do not wish to be in close proximity to persons with genitals characteristic of the opposite sex when using public restrooms, locker rooms, and showers. Those people reasonably believe that a policy allowing people of the opposite biological sex into those spaces would be an assault on their dignity, privacy, and safety, and an affront to the legitimate and longstanding privacy expectations of all North Carolinians. That is why, in publicly owned facilities, the Act simply requires that everyone—regardless of their “gender identity” use the facilities that correspond to their current anatomy.

6. In short, the Act is not, as it has been mischaracterized in the press, an “anti-transgender” law. It is, rather, a law that promotes both privacy and safety, while accommodating the legitimate interests of persons with conflicts between their biological and gender identities.

Keep reading this post . . .

Gender Confusion

by Ed Whelan

I gather from gender activists that there are supposedly some 58 or 63 different gender identities—with more on the way, surely. These gender identities include “agender,” “androgynous,” “bigender,” “intersex,” “neither,” “neutrois,” “pangender,” and “all spirit.”

So if it’s the Obama administration’s position that Title VII requires that an employer provide access to restrooms and showers “consistent with gender identity” and that Title IX requires schools to provide restrooms and showers “that treat transgender students consistent with their gender identity,” how, pray tell, can that possibly be done? Isn’t the Obama administration relying on the old cisgender binary?

On Women Who Really Do Look Like Men

by Ed Whelan

One common policy objection I hear to North Carolina’s H.B. 2 law on access to single-sex multi-occupancy bathrooms and showers in public schools and government buildings goes something like this: “There are transgender men [i.e., biological women who identify as men] who look just like men. You really want to force them to use the women’s restrooms. Won’t that scare the women and girls you say you want to protect?” The objection is typically accompanied by a photo of someone who is identified as (or implied to be) a biological female but who, through the uses or abuses of modern chemistry and surgery, does indeed (at least when partly clothed) look just like a man, facial hair and sculpted chest muscles included.

The objection is a worthwhile one to consider. But it turns out that serious consideration of it defeats—and highlights the folly of—the transgender claim, led by the Obama administration, for a one-size-fits-all requirement that anyone who identifies as a member of the opposite sex, no matter his or her appearance, be allowed to use the single-sex facilities of the opposite sex, no matter whether those facilities are restrooms or showers or dormitory rooms, no matter whether they’re in schools or businesses or public places. (I’m setting aside in this post that the Obama administration’s claims about what Title VII and Title IX supposedly require are legally meritless and incoherent, and I’m instead focusing just on the question of what sound policy ought to be.)


1. People who identify as transgender do not define themselves by their outward appearance. Don’t take my word for it. Here’s GLAAD (emphasis added):

Gender identity is a person’s internal, personal sense of being a man or a woman (or someone outside of that gender binary). For transgender people, the sex they were assigned at birth and their own internal gender identity do not match.…

[M]ost transgender people seek to bring their bodies more into alignment with their gender identity.

Many transgender people are prescribed hormones by their doctors to change their bodies. Some undergo surgeries as well. But not all transgender people can or will take those steps, and it’s important to know that being transgender is not dependent upon medical procedures.

Thus, there are men and boys who identify as female but who don’t look at all like women or girls, whether that’s because they’re early in the transition process, or because they choose not to, or because whatever steps they’ve undertaken haven’t changed much. Vice versa, of course, for women and girls who identify as male.

2. So the very same situation that the transgender advocates try to deploy to their advantage—an unknown person who looks like a man enters a women’s restroom—is exactly what their own position would call for. The only difference is that in their example the person who looks like a man is a biological female, whereas in my example the person who looks like a man is a man who thinks he’s female.

So transgender advocates can’t coherently object to laws like H.B. 2 on this basis when their own preferred solution would yield the same result.

3. There are of course plenty of other scenarios that women and girls would likely find even more jarring than the intrusion in a restroom of someone who looks like a man: for example, having men or boys take showers with them and watch them dress and undress. Somehow the transgender folks seems not to factor these scenarios into their calculus.

4. More broadly, it is highly doubtful that there is a single one-size-fits-all solution to the various scenarios that arise. Yet that is exactly what the transgender advocates and the Obama administration are trying to impose. It is they who have made it impossible to retain any informal system of customized accommodations that reflect particular circumstances. (And it is exactly such a system that would have allowed women who really look like men to use the men’s restrooms.)

5. In the face of the transgender assault, H.B. 2 is an entirely sensible, though necessarily imperfect, response. Far from trying to impose a uniform solution (much less “force” women who think they’re men to use the women’s restrooms), it leaves private businesses entirely free to adopt whatever policies they want for their restrooms. It also allows public schools and government buildings to provide single-occupancy facilities that can be used by anyone. And under North Carolina law anyone who undergoes a surgical so-called “sex change” can change the sex listed on his birth certificate and thus use the facilities of his gender identity.

This Day in Liberal Judicial Activism—May 8

by Ed Whelan

2016—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See here for relevant excerpts from the report.)

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)   

Another Candid Liberal

by Ed Whelan

More evidence (on top of Erwin Chemerinsky’s essay from a month ago) of the Left’s eagerness to rewrite the Constitution through judicial invention:

On Balkinization, Harvard law professor Mark Tushnet encourages liberal judges and advocates to abandon “defensive-crouch liberalism” and instead to “take aggressively liberal positions.”

I confess that I had no idea that liberal claims to things like a constitutional right to same-sex marriage were taken from a defensive crouch. They sure seemed aggressive to me.

I also think that Tushnet is badly confused when he seems to suggest that the conservative characterization of various constitutional disputes as “culture wars” somehow means that conservatives were the aggressors in those wars. No, the conservative position on all (or nearly all) of those disputes—over abortion, marriage, and so on—is that the Constitution leaves the matter to the legislative processes for decision and that the Left’s insistence that the Constitution enshrines its favored policy positions is an aggression against the body politic.

That said, here are excerpts from Tushnet’s agenda, with some commentary from me:

– “Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided.” Yes, liberal claims for adherence to precedent were phony all along.

– “The culture wars are over; they lost, we won.” Better to “tak[e] a hard line” than to “accommodate the losers.” A surer recipe for pervasive discord could hardly be scripted. Yet another reason to fear that our great country is doomed.

– “Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.” Again, so much for any effort at faithful adherence to precedent.

– “Finally (trigger/crudeness alert), f*** Anthony Kennedy.” Except that Tushnet doesn’t even use asterisks. Kennedy will indeed be rendered irrelevant to the Left if the Scalia vacancy is filled with a liberal.