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.