Bench Memos

Law & the Courts

Not ‘a Girl Like Every Other Girl’

In a house editorial today, the Washington Post adds its voice in support of the Obama administration’s aggressive but low-profile campaign to coerce public school districts to allow boys who think they’re girls to use the bathrooms, locker rooms and showers designated for girls. As I’ve explained, the Obama administration is now claiming that existing laws against sex discrimination impose this requirement on public schools as a condition of federal funding. (Curious, isn’t it, that President Obama hadn’t figured out and announced that interpretation when he ran for office in 2008 or 2012?)

You wouldn’t understand from the Post editorial that sex discrimination is supposedly at issue. For making that point clear would require the Post to try to explain how it’s sex discrimination for a school district to treat individuals of the same sex, but of different “gender identities,” the same. (To be sure, the Obama administration has its arguments; my limited point here is that the Post finds it convenient to duck the issue.)

Indeed, the Post’s discussion of the controversy at a suburban Chicago school seems designed to divert attention from the fact that a boy who thinks he’s a girl is trying to use the girls’ locker room and showers. The editorial refers to the student only as a “female transgender student,” a “young girl,” and a “girl,” and it endorses—including in its title in the print edition—the student’s wish “to be a girl like every other girl.”

It might be news to the Post’s editorialists, but it’s not the case that “every other girl” has male genitals and XY chromosomes. In other words, the student isn’t being treated “like every other girl” because he is, anatomically and genetically, not a girl. So while the Post would be welcome to make the argument that the student’s self-identification should trump biological reality, it doesn’t even recognize that that’s the issue.

To be clear: The plight of someone who suffers from such severe gender confusion must be a terribly difficult one, and I’m very open to the argument that some sort of special accommodation may be the best solution. But although the Post, at a couple of places in its editorial, purports to be interested in some negotiated “solution” or “accommodat[ion],” its embrace of the proposition that a boy who thinks he’s a girl is really just “like every other girl” makes any common-sense solution impossible.  

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