Bench Memos

Law & the Courts

DOJ Transgender Ideologues Hide Behind Sexist Stereotypes

In defense of the Obama administration’s ill-founded claims that Title VII, Title IX, and VAWA all require that “transgender” individuals be treated “consistent with their gender identity,” Vanita Gupta, the acting head of DOJ’s Civil Rights Division, declared the other day:

Transgender men [i.e., women who identify as men] are men — they live, work and study as men. Transgender women [i.e., men who identify as women] are women — they live, work and study as women. [Emphasis added.]

Gupta thus starkly demonstrates the point that I made in my National Review (magazine) article on the Fourth Circuit’s (thoroughly confused) transgender ruling:

The foundational premise of the transgender agenda is that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective conception of gender identity is the genuine reality that demands recognition and respect — including the use of wrong pronouns, thus yielding such absurdities as, from The New Republic, “She . . . tried to castrate herself by tying off her testicles.” That premise, with its disjunction between reality and perception, is a stark illustration of what everyone used to recognize as lunacy. But the Obama administration now claims that federal statutes adopted decades ago embrace and compel that lunacy.

But let’s set aside that foundational lunacy. Let’s also set aside that North Carolina’s H.B. 2 clearly does not discriminate on the basis of gender identity. Let’s further set aside the elementary fact that a man’s self-identification as female does nothing to lessen the privacy and safety concerns that women and girls have when he tries to shower with them (or when, as the transgender folks implicitly concede—point 2 here—he has a male appearance when clothed but insists on using the women’s restrooms). 

Let’s ponder instead what Gupta might possibly mean by saying that “transgender men … live, work and study as men” and that “transgender women … live, work, and study as women.”

In an age in which sexist stereotypes are forbidden, what does Gupta think that it means to “live, work and study as men”? Obviously, the Obama administration would never embrace the heteronormative prejudice that part of living as a man might include wanting to date women. So let’s take some simpler examples: If a women who thinks she’s a man is attending a women’s college, is she living and studying as a man? If a girl who thinks she’s a boy is playing on a girls’ sports team, is she living as a boy? One would certainly think not. But why then hasn’t the Obama administration, as part of its aggressive enforcement agenda, threatened supposedly single-sex colleges like Mount Holyoke that admit women who identify as men (and that don’t expel women who, after enrollment, first come to identify as men)? Why hasn’t it told high schools that girls who identify as boys can’t play on the girls’ sports teams?

Contradicting Gupta, GLAAD tells us that gender identity “is a person’s internal, personal sense of being a man or a woman (or someone outside of that gender binary)” (emphasis added)—and thus evidently not something that is necessarily reflected in outward action. Indeed, GLAAD makes clear that while “most transgender people seek to bring their bodies more into alignment with their gender identity” (emphasis added), trying to do so is not essential to being transgender.

Does living as a man mean wearing distinctively male clothing?  What permissible meaning would that question even have for the Obama administration? If a woman who identifies as a man prefers to wear androgynous clothing, is she therefore not transgender under Gupta’s standard?

At bottom, all that Gupta’s puddle of goo really seems to mean is that a woman lives, works, and studies as a man, and that a man lives, works, and studies as a woman, when each wants to use the restrooms and showers of the opposite sex.

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