The Corner

Law & the Courts

No, There’s No SCOTUS Precedent That Justifies the Administration’s Transgender Locker-Room Mandate

Last week, I wrote an article about the Supreme Court’s upcoming opportunity to weigh in on the Department of Education’s notorious transgender locker-room mandate. The case — Gloucester School District v. G.G. — has drawn friend-of-the-court briefs from organizations on both the Left and the Right urging the Court to take up the issue.

Here is one more easily-debunked argument sometimes put forth to justify the mandate: The Department of Education is just following the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins

Wrong. Price Waterhouse was an employment case brought under Title VII. It concerned a woman who allegedly was not promoted, because she had an aggressive personality. The Court agreed that, if a man with a similar personality would have been promoted, then she was a victim of sex discrimination under Title VII.

Fine. But try applying that logic to the transgender locker-room mandate.  It will only tie you in knots: It’s true that if an intact anatomical male were an anatomical female, he would be permitted to use the girls’ toilets, locker rooms and showers. But that logic would apply to all males, not just transgenders. The Price Waterhouse analogy thus proves too much. Something must be wrong with its logic.

To shake loose of those knots, just remember this: Title VII does indeed prohibit passing over a female employee for a promotion when a similar male employee would have been promoted. That’s pretty much the definition of sex discrimination. But Title IX’s implementing regulations make clear that separate intimate facilities do not constitute sex discrimination. Those regulations specifically allow schools to “provide separate toilet, locker room and shower facilities based on sex,” so long as those facilities are “comparable.” 

School districts like Gloucester County have been doing exactly that for decades and it is perfectly legal. Price Waterhouse simply doesn’t apply.

As I discussed in my earlier article, Title IX doesn’t require Gloucester County to assign students to locker rooms and showers based on sex. It just permits it. School districts can choose to assign them based on just about any other basis — from astrological sign to gender identity — if that were what their students want. But when the Department of Education purports to requires school to assign students to locker rooms and showers based on gender identity rather than sex, it is not interpreting the law. It’s making it up.

Gail Heriot is a law professor at the University of San Diego and a Member of the U.S. Commission on Civil Rights.

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