Law & the Courts

The Department of Justice Tries to Create a Third Sex


The Obama administration’s top attorneys are resorting to ever greater legal contortions as the “bathroom wars” heat up. In its recent letter to North Carolina demanding the instant repeal of its recently passed “bathroom bill,” the Department of Justice’s Office of Rights claimed that requiring people to use public accommodations in institutions, universities, and workplaces in accord with their biological sex violated equal protection for the sexes under both Title VII of the Civil Rights Act and Title IX of the Education Amendments Act.

That is simply not true.

The letter from the Office of Civil Rights (OCR) cited four cases in which, they claim, that federal courts have accepted “transgender” as a sex with the right to protection from discrimination that is identical to the protection enjoyed by males and females.

All four cases cite Price Waterhouse v. Hopkins (1989), a landmark sex-discrimination case in which the Supreme Court held that discriminating against a woman because she was not sufficiently stereotypically feminine was a form of discrimination against her on the basis of sex. Ann Hopkins was told that in order to make partner in the accounting firm, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The rule that discrimination on the basis of sexual stereotyping is discrimination based on sex has been upheld in numerous subsequent cases.

The Price Waterhouse ruling is the only basis for the finding of sex discrimination in the cases falsely described by the OCR as holding “transgender” to be a protected sex.

In these cases, the plaintiffs happened to be transgender or transsexual or suffering from gender-identity disorder; but the finding of sex discrimination was based on the Price Waterhouse rule and not on their gender identity or sexual orientation.

In Smith v. City of Salem (2004), the Sixth Circuit found that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior.”

In Barnes v. City of Cincinnati (2005), the Sixth Circuit again held that discrimination against persons for non-stereotypical sexual behavior is discrimination based on sex, regardless of the cause of the nonconformity.

In Schroer v. Billington (2008) a Washington, D.C., District Court judge again applied the Price Waterhouse rule to a case involving a “transsexual,” noting:

What makes Schroer’s sex stereotyping theory difficult is that, when the plaintiff is transsexual, direct evidence of discrimination based on sex stereotypes may look a great deal like discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly all federal courts have said is unprotected by Title VII. [Emphasis added.]

In Glenn v. Brumby (2011), the Eleventh Circuit held that: “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination in violation of equal protection, whether it is described as being on the basis of sex or gender.” (Italics added.)

Never has any federal court found that a person of one sex claiming to identify as the opposite sex had a basis for a sex-discrimination case.

In none of these cases do any of the courts attempt to extend the protections of Title VII of the Civil Rights Act to any class of persons other than biological males and females. Never has any federal court found that a person of one sex claiming to identify as the opposite sex had a basis for a sex-discrimination case.

It was the Equal Employment Opportunity Commission itself — created by the Civil Rights Act — that ​declared in Macy v. Holder (2012) that Title VII precludes discrimination against persons who claim to be transgender, even absent discrimination based on sexual stereotyping. Citing only the cases above, the EEOC announced flatly, “ . . . that “the Complainant’s complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.”

In writing Title VII and Title IX to advance the equality of women with men in the workplace and in our educational institutions, Congress did not envision any third sex, change of sex, or transgender sex. Nor did Congress, then or now, have the power to create any such thing.

Neither do federal bureaucrats, issuing regulations to enforce Titles VII and IX, have the power, under any conceivable notion of administrative law, to declare that henceforth there shall be in the U.S. a third sex of whatever characterization.

The OCR, here and in a prior Virginia high-school “bathroom bill” case, cited the finding by the Supreme Court in Auer v. Robbins (1997). This case upheld the secretary of labor’s interpretation of the Fair Labor Standards Act regarding which level of employees qualify for overtime benefits. Empowered by the language of the statute, the secretary employed a salary test of his own devising that exempted from overtime pay employees whose salaries were not affected by the quality or quantity of work performed. St. Louis police sergeants objected because their pay could be docked for disciplinary reasons. The Supreme Court issued this ruling: “Because the . . . test is a creature of the Secretary’s own regulations, his interpretation of it is . . . controlling unless “‘plainly erroneous or inconsistent with the regulation.’”

There is no statute that has granted federal civil-rights bureaucrats the authority to define or delimit sex or to extend the protections against discrimination based on sex to any sexes other than male and female.

As the Court put in in Price Waterhouse: “We need not leave our common sense at the doorstep when we interpret a statute.”

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