The Feds Make a Mess of Sex and Gender

The never-resting Office for Civil Rights (OCR) U.S. Department of Education and the equally insomnolent Civil Rights Division of the U.S. Justice Department have just issued their latest “Dear Colleague” letter advising the stewards of the nation’s schools of their newest responsibility.

The “Dear Colleague Letter on Transgender Students” consists of five pages of text, three pages of footnotes, and a notice on “language assistance” in the event that non-English speakers are puzzled by the newly enunciated need to avoid discrimination against transgendered and gender-transitioning youth.

The number of such youth is, by all accounts, vanishingly small, but they loom large in current public policy deliberations.  Most notably, they have become hostages in the battle between the Obama administration and the state of North Carolina.  As has been widely reported and discussed, the Tar Heel State has ruled that individuals should use public restrooms corresponding to their sex at birth.

This has raised questions of post-modern epistemology.  As a matter of science, the sex of all humans is fixed at birth and is unchangeable.  That sex is present in the chromosomes of every cell in the individual’s body.  Even the most radical surgical, hormonal, and cosmetic interventions are powerless to change it.

But what is true of sex need not be true of the elastic concept of “gender,” which has been thrust on American culture as the all-purpose substitute for sex.  As it happens, my discipline, anthropology, bears some responsibility for this.  Way back in the 1930s, even before “gender” became the catchphrase, Margaret Mead was preaching the idea that cultures exhibit dramatic differences in the ways they define the proper temperaments of men and women.  Masculinity and femininity are, as we have learned to say with due solemnity, “culturally constructed.”  The men of the Tchambuli tribe in New Guinea, said Mead, are prissy and feminine by our standards; the women, all-business and managerial.

No need to elaborate.  For many decades, social science along with legions of Tchambuli-like American feminists have run with the idea that gender is “socially constructed.”  And what one Tchambuli can construct, another can deconstruct, and yet another reconstruct.  It took us a while to get all the way to the destination that people should feel free to make up their own genders, but at long last the Office for Civil Rights has set us straight.  Though that is probably not the right word.

But, as I said, we face epistemological complications.  The civil rights theory of transgender rights posits that “gender identity” is an inherent fact in the individual, which is to say that it sounds a lot more like what we used to call the individual’s sex.  If so, it is not “culturally constructed,” but somehow given in the nature of the individual.  In which case, it isn’t “gender” at all, and cannot be the basis for gender discrimination.

But let’s not quibble. Intellectual coherence isn’t what we require of federal agencies devoted to progressive social justice.  Progress is what we expect.  The “Dear Colleague” letter begins with a statement of seeming fact:

Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students.

It is “parents, teachers, principals, and school superintendents” who are concerned about “civil rights protections for transgender students.” OCR is simply providing the answers that are needed in these troubled times.

It is small measure of how badly these answers are needed that I passed through 22 years of formal education and more than 25 in college and university teaching without knowingly encountering a single transgendered student.  I realize this now to my shame.  How many students did I address by cis-gendered pronouns while thoughtlessly assuming that their apparent sex matched their inner gender identities?

Well, perhaps none, but still it is possible.  It happens.  A faculty member at a large public university wrote to me this week on exactly this matter.  He incorrectly used the pronoun “he” in reference to a Japanese author whose “gender identity” he didn’t know.  A transgendered student in the class promptly filed a complaint with the university, which has summoned the faculty member to meet with the dean to ensure that such a transgression is not repeated.  The faculty member has so far not made his travail public, perhaps out of the hope of saving his university the ignominy of appearing on an OCR blacklist for its overly lenient handling of the case.

What the OCR letter provides, of course, is an astonishing annexation of new power to the federal government.  Humanity is capable of all sorts of twists and turns when it comes to sexual appetites and personal identities.  Societies attempt to impose some order on this, and Margaret Mead was not wrong in observing that the ordering ideas vary from place to place.  The social norms that prevail at 400 Maryland Avenue, SW, Washington, DC 20202, where the tribe of OCRians reside, for example, differ from the social norms in North Carolina and most other civilized places.

We need to make allowance for these differences lest we fall into a pattern of inadvertent discrimination.

By OCR’s account “Compliance with Title IX” requires that as a condition of receiving federal funds, schools “not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.”  When North Carolina boldly put itself in complete compliance with this law by insisting that “sex” means sex, it ran afoul of the OCR conception that “sex” means self-invented “gender identity.”  To that end, schools are supposed to provide transgendered students access to the “sex-segregated restrooms and locker rooms,” of their own choice.

OCR’s advice on athletics is a bit more complicated.  Schools can still differentiate among students on the basis of (real) biological sex provided they do not “rely on overly broad generalizations or stereotypes,” or act on “others’ discomfort with transgender students.”

I was briefly under the impression that “discomfort” was an index of oppression, and where discomfort exists, surely OCR regulatory assuagement must follow.  But no, the discomfort of transgendered students faced with normative expectations of sexual identity is a crisis.  The discomfort of the “cis-gendered” is just their tough luck.

I can’t unravel this mystery here, though I note that many commentators are giving it their best effort. The only thing clear to me is that OCR has reached such an apotheosis, that it now has the power to overrule nature and command our very chromosomes to obey its dictates.  We’ll see how that works out.