This week the Justice Department entered into a settlement agreement with the Arcadia, Calif., school district to resolve an investigation into allegations of discrimination against a transgender student that was, the press release says, “based on the student’s sex.” The complaint that had been filed alleged that the district had prohibited the student from “accessing facilities consistent with his male gender identity, including restrooms and locker rooms at school, as well as sex-specific overnight accommodations at a school-sponsored trip,” because the student is, well, not actually male.
Whatever one thinks of this as a matter of policy, it is quite dubious as a matter of law. The relevant statutes here, as the Justice Department’s press release acknowledges, “prohibit discrimination against students based on sex.” The Justice Department’s position is that “sex” includes not only sex but also “a student’s gender identity, transgender status, and nonconformity with gender stereotypes.”
Presumably the Justice Department has no objection (for now) to, say, separate restrooms and locker rooms for boys and girls. Rather, then, the objection the Justice Department has is to the refusal by the school district to draw a distinction between girls who identify as girls and girls who do not identify as girls (apparently on the theory that unless you believe you are a girl then you aren’t a girl, for purposes of the law). But the school district’s refusal to draw that distinction is not discrimination on the basis of “sex”; and, of course, if the legislators who passed these statutes in 1964 and 1972 had been told that this is what those statutes meant, they would have been understandably horrified.
Again, we can have a discussion about the best policy to follow for transgender students, but the U.S. Justice Department should not, by distorting a law, pretend that Congress has already resolved that discussion.