Supreme Court takes on the issue of who pees where

The Supreme Court announced last week that it will decide (or try to) whether the Obama administration may require public school districts, as a condition of receiving federal funding, to let transgender students use restrooms that don’t correspond with their anatomical sex. The case in question involves Gavin Grimm, who is a girl anatomically but “identifies” as a boy and thus wishes to use the boys’ room at her (or, if one prefers, his) school in Gloucester County, Virginia.

Ed Whelan has written a fine take down of the appeals court decision that went against Glouceester County. I also recommend this article by Gail Heriot, a member of the U.S. Commission on Civil Rights.

Heriot sets the stage nicely:

A longstanding American custom holds that communal restrooms, locker rooms, and showers should be separated by sex. Up until very recently, nearly everyone understood sex to be a biological concept and anatomy to be its primary indicator.

No law required communal facilities to conform to this custom. In theory, the owners of such facilities could choose some other determinant — like the newly popular concept of “gender identity” or even astrological sign. But few deviated from the custom.

The DOE is now uprooting this custom and replacing it with a one-size-fits-all mandate. Under its policy, henceforth, federally funded schools must separate students based on gender identity rather than actual sex in assigning intimate facilities.

Put more clearly, anatomically intact males must be permitted to use the restrooms, locker rooms, and showers for females if they say they identify psychologically with females (and vice versa).

Heriot argues that there is no legal basis for the Obama DOE’s decree. The DOE relies on a regulation issued in 1975 under Title IX of the Education Amendments Act of 1972. Heriot notes:

[T]he language of the 1975 regulation is permissive, not mandatory. It states that schools “may” maintain “separate toilet, locker room, and shower facilities on the basis of sex,” so long as they are comparable. Earlier Supreme Court cases had established that separate is inherently unequal in the context of race. The regulation simply clarifies that sex is different. With sex, separate intimate facilities are a reasonable privacy and safety protection and thus permissible.

The DOE construed the regulation to mean that students who identify as transgender have the “sex” that is the same as their gender identity — in other words, the opposite of their anatomical sex. Under this reading, a school’s single-sex restrooms would fall within the protection of the 1975 regulation only if boys who identify as girls are allowed to use the girls’ restrooms (and vice versa).

This is an insane reading of the regulation. The 1975 regulation speaks in terms of “sex,” not “gender identity.” As Heriot points out, Title IX does not cover gender identity and no one would have dreamed of covering it in 1975 when the regulation was issued.

Indeed, says Heriot, for decades, in the LGBT community and elsewhere, terms like “transgender” and “gender” have been used to contrast with “transsexual” and “sex.” A “transsexual” person has undergone a “sex-change operation,” while a “transgender” individual simply shares habits and traits with the opposite sex.

Sex and gender identity are different. Title IX deals with the former, not the latter.

Even the Fourth Circuit found the DOE’s interpretation less persuasive than the obvious view that sex means biological sex. It held, however, that the DOE’s interpretation is plausible enough to warrant deference.

But, as Ed Whelan points, even this bit of legerdemain is insufficient to support the Fourth Circuit’s decision to uphold the DOE regulation. Assume for the moment that the 1975 regulation doesn’t provide a defense for the school district; the plaintiff still must affirmatively show that its policy violates Title IX. On this question of statutory interpretation, the court could not accord any deference to an administrative interpretation as informal as the one at issue here (a letter from an acting deputy assistant secretary).

From a policy perspective, the DOE’s one-size-fits-all approach is badly misguided. As Heriot says:

Sometimes, in a local school principal’s judgment, the best solution may be exactly what DOE purports to require: Let him use the intimate facilities assigned to his “preferred sex.” Sometimes the students who must share these facilities with him don’t mind.

But many cases, the affected students will feel their privacy or sense of security has been violated. Their feelings matter, too. Hence, sometimes the best thing may be to keep him with the members of his actual sex. In still other cases, the right solution may be to assign him to single-user facilities or to faculty facilities. Every case is different.

(Emphasis in original)

In Gavin Grimm’s case, after she told school officials that she is a transgender boy, her high school barred her from using the boys’ restroom and instead built three single-stall restrooms that were available for her (and other students of either sex) to use. This was an attempt to accommodate both Grimm’s sensitivities and those of other members of the student body.

Was it a reasonable accommodation? I would have thought so, but I’m not sure. I am sure that the decision is best worked out at the local level.

But even if I’m wrong, this is a decision that federal bureaucrats lack the authority to make. As Heriot concludes, the case is really about whether government agencies are allowed to “interpret” the law to be whatever they want it to be, or whether they are obliged to enforce it as written and agreed to by our elected representatives.

In other words, it’s about the rule of law.

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