Public bathrooms are the latest front in our ongoing “culture wars.” The battle is over whether transgendered people should be allowed access to restrooms (and other sex-segregated facilities) on the basis of their gender identity rather than their “birth-assigned” (i.e., biological) sex where the two conflict. Not surprisingly, this issue has generated great controversy. This post is not about whether access based on gender identity is a good or a bad idea. Rather, the focus here is on how the Obama Administration is attempting to dictate the answer through bureaucratic fiat based on a legally unsupportable “reinterpretation” of current law and regulations. Its actions provide a classic example of the dangers posed by federal regulatory excess and the need for an objective, non-politicized judiciary to rein it in. This is particularly important where, as in this case, creating new rights for one group comes at the expense of the rights of many others.
A test case on the Administration’s actions is poised to be considered by the Supreme Court in its upcoming term. The pro-transgender position enjoys intense and widespread support among cultural activists, liberal interest groups and the media. However, the law is just as firmly on the other side. The outcome of the case will say much about the state of the federal judiciary. It also will determine whether the public and their elected representatives have the right to participate in resolving the complex and difficult issues presented.
Legal Background
The Obama Administration seeks to force educational institutions nationwide, from elementary schools through colleges, to allow transgender people access to bathrooms as well as other sex-segregated facilities and programs based on their gender identity rather than their biological sex. The legal vehicle the Administration invoked is Title IX of the federal Civil Rights Act, enacted in 1972, which prohibits discrimination “on the basis of sex” in education programs and activities that receive federal funding. 20 U.S.C. 1681(a).
The law is straightforward. Title IX’s prohibition against sex discrimination applies broadly but is subject to exceptions. Title IX itself states that the law does not prohibit educational institutions from “maintaining separate living facilities for the different sexes.” 20 U.S.C. 1686. Likewise, federal regulations implementing title IX, which date from 1975, permit “separate toilet, locker room, and shower facilities on the basis of sex” so long as the sex-segregated facilities are comparable. 34 C.F.R. 106.33.
The core legal issue is what does “sex” mean for purposes of title IX? The term “sex” is universally defined in dictionaries and other standard sources to mean biological sex—i.e., those anatomical, physiological and other features relating to reproduction that distinguish males from females. By contrast, “gender” refers to behavioral and cultural traits typically associated with biological males and females. Thus, the American Psychological Association states:
“Sex refers to a person’s biological status and is typically categorized as male, female or intersex (i.e., atypical combinations of features that usually distinguish male from female). . . . Gender refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex.”
Consistent with this understanding, the federal government maintained for decades that title IX prohibits discrimination on the basis of biological sex, not gender identity, to the extent that the two diverged in any individual. The courts agreed. For example, a 2015 federal district court decision, held that denying a biologically female transgender student use of the men’s locker room did not violate title IX; nor did it violate the Constitution’s Equal Protection Clause.[1] However, the Obama Administration’s position recently “evolved” and essentially pivoted 180 degrees on this point. The Administration now asserts that “sex” in title IX and its regulations applies on the basis of gender identity rather than biology.
The Grimm Case
The Administration’s evolution became weaponized in the Grimm case. This case, formally known as G.G. v. Gloucester County School Board, involves a dispute over transgender restroom access in a small Virginia school district. Despite its seemingly humble origins, Grimm is a carefully orchestrated major test case; indeed, one of the court opinions takes four full pages just to list all the participating parties and their lawyers.
The plaintiff in the case is a high school student named Gavin Grimm [2] whose biological sex is female but who identifies as a male. Grimm was diagnosed with “gender dysphoria”[3] and, as part of his treatment for this condition, his psychologist recommended that he be treated as a boy in all respects. Before the beginning of his sophomore year, Grimm and his mother informed school officials that he was a transgender boy and requested that he be allowed to use the boys’ restroom. The school initially agreed. However, Grimm’s use of the boys’ room led to many complaints, which in turn resulted in the adoption of a school board policy requiring use of separate restroom and locker facilities for biological males and females. The school board policy also required that its schools provide alternative single-use restroom facilities for anyone wishing to use them.
Pursuant to this policy, Grimm’s school installed three single-use unisex restrooms to be available to all students, an accommodation recommended by the federal Department of Education. (See below.) However, Grimm refused to use a unisex restroom because it made him feel “stigmatized.” He then sued, claiming that title IX requires schools to provide transgender students access to restrooms matching their gender identity.[4]
Prior to filing suit, Grimm’s attorneys solicited a letter from the Education Department regarding transgendered students’ access to restrooms. The Department’s Office of Civil Rights (OCR) responded in a letter dated January 7, 2015. The letter said that OCR refrains from offering opinions about specific cases without first conducting an investigation but added:
“The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.” (Emphasis supplied)
Grimm’s lawyers argued that the courts must defer to the Education Department’s interpretation as set forth in this letter. Initially, the federal district court ruled against Grimm.[5] The district judge held that the title IX regulation unambiguously permitted the segregation of restrooms on the basis of biological sex. He rejected OCR’s contrary interpretation, observing that this “newfound interpretation” would “create de facto a new regulation.”
On appeal, a divided three-judge panel of the Federal Court of Appeals for the Fourth Circuit reversed.[6] The majority concluded that the title IX regulation was indeed ambiguous. In this regard, the majority observed that modern dictionary definitions of “sex,” while clearly encompassing biological features, “implicitly recognize the limitations of a nonmalleable, binary conception of sex.” Because of this ambiguity, the majority held that it must accept OCR’s interpretation even though the OCR interpretation was “novel” and “perhaps not the intuitive one.”
The dissenting judge accused OCR and the majority of effectively rewriting title IX by adding an entirely new protected class—transgender people—that had no basis in the language or history of the statute. He noted that the majority’s “unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of [restrooms and other] facilities is designed to protect.” Citing numerous dictionary definitions, the dissent concluded, as had the district judge, that the term “sex” in the law and regulation unambiguously means biological sex for the very purpose of protecting these privacy rights.
Aftermath of Grimm
The Obama Administration wasted no time using the Grimm decision to double down and expand on its position. On May 13, 2016, less than a month after the Fourth Circuit decision was issued, the Education and Justice Departments sent a joint “Dear Colleague” letter to schools nationwide on how to comply with title IX in the case of transgender students. The May 13 letter prescribed very specific “guidance” on a number of points. For example:
- When a student or the student’s parent or guardian asserts a gender identity, the school must accept it. There is no requirement for a medical diagnosis or treatment regime.
- Access to locker rooms as well as restrooms is to be based on gender identity. A school may not require the use of individual-user locker or restroom facilities as an alternative.
- Where single-sex classes and activities are permitted, access must be granted based on gender identity.
- The letter also seems to require gender identity-based participation on sex-segregated athletic teams. (While somewhat equivocal on this point, it is unclear how the Departments could do otherwise given their legal interpretation that sex means gender identity under title IX.)
The Obama Administration’s position has not fared well in two preliminary judicial encounters subsequent to the Grimm decision. On August 3, 2016, the Supreme Court took the unusual step of issuing a stay to prevent enforcement of the Fourth Circuit’s decision pending its own review of the case.[7] Then on August 21, 2016, a federal district court in Texas issued a nationwide injunction barring enforcement of the May 13 Obama Administration letter.[8] The court held that (1) issuance of the letter without going through a rulemaking process violated the Administrative Procedure Act and (2) the Obama Administration’s position on title IX was inconsistent with the plain meaning of the statute and implementing regulation.
Critique of the Obama Administration Position and the Grimm Decision
If one applies well-established legal principles, the Obama Administration position and Fourth Circuit decision in Grimm are clearly wrong.
Under Supreme Court precedent,[9] courts generally defer to an agency’s interpretation of a regulation it issues or a statute it administers when (1) the interpretation “reflects the agency’s fair and considered judgment,” (2) the regulation or statute is ambiguous on the point at issue, and (3) the agency interpretation is not plainly erroneous. The Fourth Circuit majority’s acceptance of the OCR letter as a “fair and considered judgment” is dubious given that the letter provides no legal precedent or any reasoning at all to support its interpretation that “sex” means gender identity. More fundamentally, the Administration’s interpretation as set forth in the letter contradicts the unambiguous language of the regulation (and the underlying statute) and is, therefore, plainly erroneous.
Agencies and courts are obliged to apply a statute’s (or regulation’s) plain meaning when its language unambiguously conveys that meaning. Basic rules of statutory construction dictate that words used in a law be given their ordinary meaning as defined in dictionaries and like sources of common understanding. As noted previously, the term “sex” as used in title IX and its implementing regulations does have a uniformly defined and commonly understood plain meaning: It means biological sex.
The Obama Administration offers no explanation why its title IX regulation which explicitly permits sex-segregated restrooms doesn’t allow separation of males and females based on their physiological differences. The Fourth Circuit majority opinion in Grimm employs tortured reasoning in its effort to find some hint of ambiguity to support the Administration’s interpretation. In a masterstroke of illogic, the opinion asserts that the regulation must be ambiguous as to transgender coverage since it says nothing about this subject:
“Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is male or female for the purpose of access to sex-segregated restrooms.”
This is akin to arguing that a regulation dealing with apples is ambiguous as applied to oranges because it makes no mention of oranges. In any event, the dictionary supplies the clear basis for making this determination since it defines male and female in terms of reproductive function.
Parsing the dictionary definitions of sex in its continuing effort to find ambiguity where none exists, the opinion cherry-picks references to gender or gender-type indicia in the definitions. It is true that there is a gender component to the concept of sex.[10] However, to conclude that sex means gender instead of biological sex in case of conflict between the two turns the dictionary definitions and common understanding on their head. As the dissent observes:
“Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.”
The majority opinion also conjures up several far-fetched hypotheticals in an attempt to illustrate that the standard definition of biological sex may not work for all people.[11] But this approach cuts against the majority. Whatever uncertainty may arise in determining biological sex in very rare cases is nothing compared to the uncertainty of applying the law based on self-described gender identity. For example, there is a trend in contemporary culture that favors “gender-fluid” or “non-binary” gender identity. People in this camp “might wake up as a man or as a woman, sometimes as both and sometimes as neither.” How would the Obama Administration’s gender-based interpretation apply to them?
The Administration’s interpretation not only contradicts the plain meaning of the term “sex” but also disregards the obvious broader context here. There is a well-established right to bodily privacy arising from physiological differences between males and females that has been recognized in many judicial decisions and that forms the obvious rationale for the sex-segregation permitted by title IX and its regulations. As the dissent in Grimm stated:
“Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on biological differences between the sexes. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.”
The majority acknowledged that individuals have “a legitimate and important interest in bodily privacy” but dismissed this interest, observing that “the weighing of privacy interests or safety concerns—fundamentally questions of policy—is a task committed to the agency, not to the courts.” But the Obama Administration regulators simply ignored these privacy rights instead of weighing them.
In sum, one can debate whether title IX protections should apply on the basis of gender identity instead of biological sex to transgender people and thereby treat them as a distinct protected class. However, the current law and regulations clearly do not provide for this.
Beyond Bathrooms
Gender-based access to restrooms significantly impinges upon rights to personal bodily privacy. Such privacy and related concerns are even more severe when it comes to other title IX applications that the Administration’s interpretation reaches. These include access to locker room and shower facilities as well as assignment of dormitory rooms and roommates. Another highly problematic application is athletics. The Administration’s interpretation necessarily seems to make biological males who identify as female eligible to join women’s sports teams and to compete for women’s athletic scholarships. Since the Administration’s policy explicitly prohibits any medical diagnosis or other evidence, a male student need only assert transgender status to establish eligibility. This result is a particularly ironic perversion of title IX, which had as one of its key goals promoting parity between men and women in college sports.
Failure to require a medical diagnosis and treatment regime to support transgender status is problematic for other reasons as well. Dr. Paul McHugh, former psychiatrist-in-chief at Johns Hopkins Hospital and currently a professor of psychiatry and behavioral sciences there, cites studies finding that 70 to 80 percent of children who reported transgender feelings but did not undergo treatment lost those feelings later on. McHugh was once a supporter of gender-reassignment surgery but has come to view transgenderism as a mental disorder calling for remediation rather than re-enforcement. Pro-trans advocates excoriate McHugh as a tool of right-wing haters and challenge his views. However, if his statistics are even close to accurate, they should give pause to allowing mere assertions of transgender identity to govern restroom (and other) access even in the case of elementary school students. At the least, this issue merits objective, nonpolitical evaluation.
Outlook
The Supreme Court is almost sure to take up Grimm in its new term since it has already intervened in the case. Whether the Court can reach a definitive resolution is less certain given its current vacancy and ideological split. The Supreme Court’s action temporarily blocking the Fourth Circuit’s decision in Grimm came on a 5-3 vote. The four conservative-leaning justices voted for the stay while three of the four liberal justices opposed it. The remaining liberal justice, Stephen Breyer, provided the deciding vote for the stay but was tentative, somewhat enigmatically describing his vote as a “courtesy” to his fellow justices.
Whatever its final outcome, the Grimm case offers a striking illustration of the contrast between liberal and conservative worldviews. Proponents of transgender access assert their position as a moral imperative with no room for credible argument on the other side. They tend to dismiss those who oppose or even question their position as “non-inclusive” “transphobic” bigots. The stridency of this approach is reflected in the many boycotts instituted against North Carolina in retaliation for enactment of that state’s so-called “bathroom law” mandating sex-segregated restrooms.[12] The media often serve as an echo chamber for this approach. Typical is a recent Washington Post article that portrays the Grimm case as an uncomplicated story of a boy “who just wanted to use the bathroom” but was stymied by ignorant, bible-thumping rubes. Proponents also seem focused entirely on the result without showing much interest in the legal details. Thus, liberal pundit Ruth Marcus praised the Fourth Circuit’s Grimm decision as “an intrusion of sanity” into the “bathroom wars” without addressing whether this intrusion was legal as well as sane. (Ms. Marcus did, however, express reservations about some of the decision’s consequences.)
Conservatives prefer to see such cultural issues resolved through the democratic process rather than by bureaucratic or judicial fiat. This leaves room for debate and possible compromise over competing interests. The Gloucester school board’s approach of offering Grimm access to a unisex restroom is a good example. Unisex restrooms are hardly “stigmatizing” since they already are widely available for many types of users. Had Grimm (and/or his legal team) accepted this common-sense accommodation, his bathroom needs could have been met without resort to a major federal lawsuit.
[1] Johnson v. University of Pittsburgh of the Commonwealth System of Higher Education, 97 F. Supp.3d 657 (W.D.Pa. 2015).
[2] While the court opinions refer to Grimm only by his initials, he has made various public appearances and his name has been widely reported.
[3] Until recently, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) classified this condition as “gender identity disorder.” The 2013 edition of the DSM (DSM-5) changed the name to “gender dysphoria” and describes it as “a medical condition characterized by clinically significant distress caused by incongruence between a person’s gender identity and the person’s birth-assigned sex.”
[4] Grimm also asserted a discrimination claim under the Equal Protection Clause of the Fourteenth Amendment but this constitutional claim has not yet been addressed in his case. (Other courts have held that segregating restrooms and like facilities by biological sex is constitutional.)
[5] 132 F. Supp.3d 736 (E.D. Va. 2015).
[6] 822 F.3d 709 (4th Cir. 2016).
[7]136 S. Ct. 2442 (2016).
[8] Texas v. United States, ___ F. Supp.3d ___, 2016 WL 4426495 (N.D. Texas 2016).
[9] The leading cases are Auer v. Robbins, 519 U.S. 452 (1997) (regulations), and Chevron, USA v. National Resources Defense Council, 467 U.S. 837 (1984) (statutes).
[10] In fact, gender stereotyping claims (e.g., discriminating against a woman who does not conform to female gender stereotypes) have been recognized as a form of sex discrimination in the context of employment under title VII of the Civil Rights Act. Court cases differ on whether or how gender stereotyping may apply to transgendered people. In any event, this approach has no relevance to restroom access under title IX at least on the facts in Grimm. Clearly Grimm was not a victim of gender stereotyping, nor did he claim to be. On the contrary, the school system accepted Grimm’s gender identity choice and treated Grimm like a male for most purposes. It drew the line at restroom use based on Grimm’s female physiological attributes not his male gender behaviors.
[11] The opinion asks what about someone born with X-X-Y chromosomes? (This extremely rare condition is known as “Klinefelter Syndrome” and those affected by it are clearly understood to be biological males.) Or what about someone who lost external genitalia in an accident? (No one would seriously argue that this changes the person’s biological sex.)
[12] While the North Carolina law deals with other issues as well, the bathroom aspect seems to be the main catalyst for of the boycotts. Notably, the state’s voters evidently intend to weigh in on these issues in the upcoming elections.