Bench Memos

Law & the Courts

Speaking of ‘Preposterous’

Washington Post columnist Ruth Marcus isn’t happy with what she labels the Trump administration’s “move to rescind bathroom access protections for transgender students.” But she can’t coherently explain why:

1. Marcus says it’s “both wrong and offensive” for White House spokesman Sean Spicer to call school bathroom policies “a states’ rights issue.” But the Trump administration’s position is the same position that the Obama administration had for its first 7-1/2 years—and that all previous administrations going back to the enactment of Title IX in 1972 also had.

That position is that Title IX doesn’t dictate that schools must allow boys who identify as girls to use the girls’ restrooms, showers, and locker rooms, to play on girls’ sports teams, and to room with girls on overnight school trips. And vice versa, of course, for girls who identify as boys.

In other words, “a states’ rights issue” is just shorthand for the proposition that federal law doesn’t speak to the matter.

2. Marcus says that the “relevant question” is “Are transgender students protected under Title IX?”

But that’s actually a terribly worded question. The relevant question is actually twofold: (A) Does Title IX’s bar on discrimination “on the basis of sex” include discrimination on the basis of gender identity? (B) If so, does assigning bathrooms, showers, locker rooms, sports teams, and housing on the basis of biological sex discriminate on the basis of gender identity?

Let’s take these one at a time.

(A) Marcus says that Spicer is “undoubtedly correct” that “the authors of Title IX didn’t have transgender students in mind.” But, she observes soundly (quoting Justice Scalia), “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

But if Marcus offers an actual argument for why the original public meaning of “on the basis of sex” in Title IX should include “on the basis of gender identity,” I missed it. I thought that the Left has been telling us for decades that there’s this thing called gender that is a concept entirely distinct from sex. But we’re now supposed to believe that sex includes gender?

(B) As I have explained, even if we assume arguendo that the answer to question A is yes, reserving women’s bathrooms, locker rooms, and shower facilities for biological females (and men’s bathrooms, locker rooms, and shower facilities for biological males) does not in fact involve any discrimination on the basis of gender identity:

A person discriminates on the basis of a trait when he takes that trait into account in making a decision (at least when there is no compelling or inherent justification for doing so), and he doesn’t discriminate when he disregards the trait. Similarly, a policy discriminates on the basis of a trait when it makes that trait relevant to how a person is treated, and it doesn’t discriminate when it treats the trait as irrelevant. So, for example, a person discriminates on the basis of race when he factors a job applicant’s race into his hiring decision, and he doesn’t discriminate on the basis of race when he disregards the applicant’s race in making his hiring decision. Likewise, a person discriminates on the basis of gender identity when he factors a job applicant’s gender identity into his hiring decision — when, for example, he refuses to hire a woman because she says she identifies as male — and he doesn’t discriminate on the basis of gender identity when he disregards her gender identity in deciding whether to hire her.

But in the context of single-sex bathrooms, locker rooms, and showers, the concept of discrimination on the basis of gender identity plays out very differently from what the transgender ideologues contend. In this context, a school complies with the (hypothetical) norm of nondiscrimination on the basis of gender identity when it disregards a student’s gender identity and instead assigns the student to the facilities that correspond with his biological sex.

In other words, it is the advocates of transgender access to bathrooms and showers who, under the guise of their nondiscrimination rhetoric, are in fact seeking to discriminate on the basis of — in favor of — gender identity. That’s exactly what a policy of making gender identity override biological sex entails: It makes gender identity determine which restrooms and showers a person is allowed to use, just as a policy of race-segregated restrooms and showers makes race determine which facilities a person is allowed to use.

3. Marcus asserts that the “majority of lower courts that have considered the issue have agreed that discriminating against a transgender individual is sex discrimination under federal civil rights laws and the equal protection clause.” I believe that Marcus is confusing two distinct (but admittedly easy to confuse) legal questions.

Under Price Waterhouse v. Hopkins (1989), Title VII’s ban on discrimination on the basis of sex covers discrimination for failing to conform to sex stereotypes. One question is whether individuals who are transgender can, like other persons, sue under this theory (whether under Title VII or other legal guarantees). I think that this is what Marcus is referring to.

A separate question—and the one relevant here (under point 2(A))—is whether federal law bars discrimination on the basis of gender identity.

4. As supposed proof that Gavin Grimm “is a boy,” Marcus observes that “he has an amended birth certificate saying so.” But the transgender activists have rejected the notion that the sex stated on a birth certificate is authoritative, so they can’t selectively invoke it when it suits their purposes. (The opposing position treats biological sex as dispositive and simply regards an original birth certificate as presumptive evidence of biological sex.)

5. Marcus wrongly claims that Grimm is being forced to use a separate single-stall restroom. As Grimm’s brief acknowledges (p. 28), she is allowed to use the girls’ restroom (but considers that option unacceptable).

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