In a 2–1 panel ruling in mid April, a federal appellate court decided (or at least seemed to think that it decided) that G.G., a girl who identifies herself as male, has a legal right to use the boys’ restrooms at her high school in rural Gloucester County, Va. In so doing, the panel’s majority, consisting of two appointees of President Obama, kowtowed to the Obama administration’s radical claim that federal law requires any college or school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.”
Never has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception.
In 1972, Congress enacted the federal law known as Title IX. Title IX provides generally that no school that receives federal funding — a category that includes public grade schools and high schools as well as nearly all colleges, public or private — may “discriminat[e]” “on the basis of sex.” Everyone understood from the beginning, and the Obama administration still agrees, that Title IX allows schools to have single-sex restrooms, locker rooms, and showers. A regulation dating from 1975 says exactly that — a school “may provide separate toilet, locker room, and shower facilities on the basis of sex” — and goes on to specify only that “such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex” (emphasis added).
Pushing the transgender agenda through the entire alphabet of the federal bureaucracy has been a high priority for the administration in President Obama’s second term. So it was that in January 2015 an obscure functionary named James A. Ferg-Cadima, in his temporary capacity as acting deputy assistant secretary at the Department of Education, signed his name to a letter and sent that letter to G.G. (and to various transgender activists). In his letter, Ferg-Cadima made two cursory legal claims on behalf of the department. First, he declared that Title IX’s ban on discrimination on the basis of sex includes a ban on discrimination on the basis of gender identity. Second, he asserted that schools that provide “sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes” must “treat transgender students consistent with their gender identity.”
Ponder for a moment some examples of what Ferg-Cadima’s second claim means for schools that receive federal funding. A young man who says his gender identity is female must be offered a college dormitory room with roommates who are women (irrespective of the wishes of those roommates). An athlete who is biologically male in all respects must be allowed to compete for a position on a women’s sports team if he identifies himself as female. A first-grade girl who thinks she’s a boy can use the boys’ bathroom. And, yes, high-school boys who say they’re transgender girls may use the girls’ locker rooms and showers on the same terms, and at the same time, as the girls do — and vice versa, of course, for girls who say they’re transgender boys.
Not surprisingly, this insanity has no plausible basis in Title IX. Let’s assume, for the sake of argument, that Ferg-Cadima is right in his first claim: that Title IX actually forbids discrimination on the basis of gender identity. On any coherent account of what discrimination is, that assumption thoroughly defeats, rather than supports, Ferg-Cadima’s claim that “transgender students” must be treated “consistent with their 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. (I am of course not asserting that racial discrimination and discrimination in favor of gender identity are moral equivalents.)
In an article in The Washington Post in 1975, Ruth Bader Ginsberg wrote to dispel the fear that the Equal Rights Act would “require unisex restrooms in public places.” According to Ginsberg, “Emphatically not so.”
“Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.”
In this she was wrong:
“Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle,” Ginsberg claimed. “But the ‘potty issue’ is likely to remain one of those ultimate questions never pressed to final solution.”
Obama is pressing this only 40 years later.
And not in a good way.
I suspect it’s because Moochelle and Obama both want to finally be able to use the little girls room.