Bench Memos

Law & the Courts

Fourth Circuit Inflicts Sex Change on Title IX—Part 6 (Some General Observations)

See Parts 1, 2, 3, 4, and 5

I think that I’m done delving in the weeds of the legal errors that afflict the Fourth Circuit’s ruling in G.G. v. Gloucester County School Board and the Obama administration’s ideologically driven misreading of Title IX. I’d also recommend this Public Discourse essay by Adam J. MacLeod—though I prefer my label of “judicial identity disorder” to his of “office dysphoria”—and this Law and Liberty post by Greg Weiner.

I’ll offer here some more general observations:

1. The Fourth Circuit majority’s carefully hedged statement (see point 6 of my Part 1 post) that “Only restroom use is at issue in this case” should not distract attention from the fact that its ruling, if upheld, dictates that boys who identify as girls must be allowed to use the girls’ showers. There is no conceivable basis in Title IX for distinguishing restrooms from locker room and shower facilities, and the Obama administration does not contend otherwise. Indeed, acting deputy assistant secretary James A. Ferg-Cadima’s January 2015 letter, which the majority would have supplant the actual text of Title IX as governing law, explicitly treats them identically:

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.]

Judge Niemeyer makes this point in his dissent, and the majority doesn’t contest it. Indeed, the Washington Post’s Ruth Marcus acknowledges the same point: “Although Grimm [G.G.] said he [sic] had no interest in using the boy’s locker room, the Education Department’s reasoning applies in that setting too.” (Oddly, Marcus manages to maintain that the Fourth Circuit ruling on bathroom use “was correct” but to think that it’s “more complicated” to apply that ruling to showers and dorm rooms. Her purported legal analysis seems to be a mere guise for her policy assessments.)

2. Using its financial power, the Department of Education is bullying school districts throughout the country to acquiesce to its misreading of Title IX, and those school districts are in turn bullying objecting parents and students. Under any theory of political accountability in a democratic republic, it’s appalling that the Obama administration would seek to impose its radical rewriting of Title IX through the stealthy bureaucratic maneuver of a letter from an acting deputy assistant secretary, rather than through a legislative proposal to amend Title IX or, at the least, through notice-and-comment rulemaking.

3. The Obama administration has also aggressively misread Title IX on the matter of sexual harassment on college campuses, in what Harvard professors Jacob E. Gersen and Jeannie Suk expose as “bureaucratic sex creep.” As this latest video from guerrilla investigative journalist James O’Keefe illustrates, it turns out, though, that the dual Title IX campaigns are at war with each other, as some female college students will find that having men in their shower and bathroom facilities creates a threatening environment.

But don’t expect the Obama administration to try to resolve the contradictions. When you seek to transform by destroying, who cares about consistency?

4. For what it’s worth, it’s not my position that the best policy solution is to require boys who identify as female and who look like girls to use the boys’ restrooms. (And vice versa for girls.) I think that some sort of accommodation, such as the single-stall restrooms that G.G. was allowed to use, makes sense. But so far as I’m aware, the Obama administration and transgender activists have shown no interest in sensible compromises that give any weight to the privacy or safety concerns of others. They instead insist that such compromises violate federal law.

5. The Department of Education’s transgender campaign is but part of the Obama administration’s larger war on the topic. The foundational premise of this war is that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective experience of gender identity is the genuine reality that demands recognition. Is there a starker illustration of the concept of lunacy?  

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