In a New Yorker essay, Harvard law professor Jeannie Suk criticizes the Obama administration’s “new and surprising” claim that Title IX requires schools to treat students who identify as transgender consistent with their gender identity. Among her points:
1. The Obama administration’s Dear Colleague letter—by which it is attempting to force school districts around the country to surrender to its (mis)reading of Title IX—“is not law, because it wasn’t enacted through legal procedures, involving public input, that federal agencies must follow when making law.” (Yale law professor Peter Schuck made this same point in a recent New York Times op-ed.)
2. The Obama administration “has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms,” as there is “a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males.” Just as a “non-transgender girl who’s told she must share a locker room with boys” may have a Title IX claim against her school, “would she not have a similar claim about having to share with students who identify as girls but are biologically male?” The Obama administration fails to offer any coherent reason why her discomfort in the latter situation should be disregarded.
Suk, I’ll emphasize, acknowledges the “risk of sexual assault and harassment of transgender females [i.e., men who identify as women] in male bathrooms” and concerns “about transgender males [i.e., women who identify as men] being sexually bullied in male bathrooms.” The policy challenge, of course, is how best to reconcile all the competing interests. Suk aptly faults the Obama administration for making no serious effort to consider the big picture, and she observes that its failure “is only confirmed by its penchant for announcing bold and controversial rules in letters, rather than through lawful processes.”