Bench Memos

Law & the Courts

Fourth Circuit Inflicts Sex Change on Title IX—Part 4 (Meaning of Title IX)

See Parts 1, 2, and 3

As promised, I will show in this post that, contrary to the claim set forth in acting deputy assistant secretary James A. Ferg-Cadima’s January 2015 letter, Title IX does not require that, with respect to single-sex restrooms, locker rooms, and showers, schools “treat transgender students consistent with their gender identity.”

Let me note at the outset that the Fourth Circuit majority, as a result of a massive botch that I will discuss in my Part 5 post, utterly failed even to address this central issue in its opinion in G.G. v. Gloucester County School Board.

Some observations:

1. It’s crystal-clear that Ferg-Cadima’s supposed interpretation of Title IX, set forth in a single sentence in a letter he sent to various individuals, would not be entitled to the judicial deference that, under the Chevron doctrine, is extended to the products of notice-and-comment rulemaking and of formal adjudication. See United States v. Mead (2001). Indeed, completely apart from the substance of Ferg-Cadima’s position, it’s difficult to imagine an administrative interpretation that, by its informality and lack of rigor, would be less likely to qualify for any judicial deference.

So the straightforward question for the courts is whether Title IX is best read as requiring that schools “treat transgender students consistent with their gender identity” for purposes of single-sex bathrooms, locker rooms, and showers.

2. Title IX prohibits “discrimination” “on the basis of sex.” As I explained in my Part 3 post, even if we assume for the sake of argument Ferg-Cadima’s proposition that discrimination on the basis of sex includes discrimination on the basis of gender identity, a school’s practice of reserving single-sex bathrooms, locker rooms, and shower facilities to those of the corresponding biological sex does not involve any discrimination on the basis of gender identity. On the contrary, the proposition that schools must “treat transgender students consistent with their gender identity” discriminates in favor of gender identity.

In short, there is zero textual basis in Title IX for requiring schools to allow boys who identify as female to use the girls’ facilities or to allow girls who identify as male to use the boys’ facilities.

3. Additional text in Title IX further refutes Ferg-Cadima’s claim that Title IX requires that schools “treat transgender students consistent with their gender identity.” For example, section 1686 provides that Title IX shall not be construed “to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” Can anyone seriously contend that Title IX means that schools would qualify for this exception only if they housed boys who identify as female together with girls? Ridiculous.

4. It’s worth noting that there is nothing in the Fourth Circuit majority’s reasoning about the Department of Education’s 1975 regulation that remotely suggests that Title IX is best read to require that schools “treat transgender students consistent with their gender identity.” On the contrary, the Fourth Circuit majority acknowledges that “the word ‘sex’ was understood at the time the [1975] regulation was adopted”—a mere three years after Title IX was enacted—“to connote male and female and that maleness and femaleness were determined primarily by reference to … ‘biological sex.’” (Applying a very deferential standard, it manages to find only that the Obama administration’s interpretation of the word “sex” in the 1975 regulation is permissible.)

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