Bench Memos

Law & the Courts

Inconsistent Consistency

It’s farfetched to think that the Obama administration is actually interested in enforcing a misreading of Title IX that would consistently require that schools receiving federal funds treat “transgender students consistent with their gender identity.”

Consider these examples:

1. A high-school boy tells a school counselor that he identifies as a female but that he’d like to continue using the boys’ restrooms and showers (perhaps because his appearance remains fully male, perhaps because he’s be uncomfortable using the girls’ facilities, perhaps because he has a modicum of respect for the privacy of his female classmates).

Do you really think that the Obama administration expects the school to bar the boy from using the boys’ facilities and to require him to use the girls’ facilities (or a single-stall room)? Do you think that such a school would be threatened with the loss of federal funds? Ridiculous.

So what the Obama misreading of Title IX really means is that students who identify as transgender have the option—unavailable to other students—of using either the boys’ or the girls’ facilities (or both).

2. A star player on the girls’ soccer team tells her coach that she now identifies as male. Must the coach kick her off the team, which (under the Obama misreading of Title IX) is open only to individuals who identify as female? Is that something that the Obama administration would countenance, much less require?

3. A young women enrolled at Mount Holyoke College decides she’s male. Must the college expel her, as the Obama administration’s Title IX position would require?

I’ll note that Mount Holyoke’s public stated policy is to admit both men who say they’re female and women who say they’re men—and to allow women who, after enrollment, decide to identify as men to continue at the college. I don’t see how that policy can be reconciled with the Obama administration’s reading of Title IX. But why hasn’t the Obama administration threatened Mount Holyoke?

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