The Endless Muddle of Transgender Policy

(Part II)

The incoherence of the new Office for Civil Rights transgender policy becomes even clearer when one looks beyond bathrooms to locker rooms, and the athletic teams they serve. The “Dear Colleague” letter states that “Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.”

Broad, but Not Too Broad

Note that OCR provides no guidance as to when a broad generalization becomes “overly broad.” In fact, there would seem to be a real possibility that a college or university could be found in violation of Title IX for complying with NCAA regulations.

For example, the “Dear Colleague” letter declares that “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” But the NCAA Inclusion of Transgender Student Athletes policy states that “A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.” MTFs and FTMs, however, are not treated the same, since “A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.”

As if this were not confusing enough, the NCAA inclusion policy also states that “A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone … may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team.” But by contrast, “A trans female (MTF) student-athlete being treated with testosterone suppression medication … may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”

In short, does OCR’s new command “that a school must not treat a transgender student differently from the way it treats other students of the same gender identity” apply to the locker room but not to the playing field? What about hotel rooms when the teams travel? Will NCAA have to revise its extensive regulations of transgender activity to conform to the new transgender diktats from Washington? Who knows?

Although still struggling with its insistence that sex and gender identity are the same thing — “… the same sex (i.e., the same gender identity)” — OCR obviously believes that sex not only still exists but can actually trump gender when distinctions based on it not only involve contact sports but also different sex-based “competitive skill.” Does this mean that a disproportionate number of men at the top of math-intensive STEM departments does not suggest a Title IX problem? (Larry Summers, are you paying attention?) Who knows?

More Gender Equity Conflict and Confusion

Confusion and conflict, of course, are not limited to locker rooms and athletic fields. Presumably, a college or university would worry about violating anti-discrimination laws if it complied with an incoming freshman’s request not to be assigned a roommate who was black or Jewish. Should it have a similar concern about a freshman woman’s request not to be assigned to a room with a transgender woman?

If there are as many transgender students as the administration’s recent flurry “guidances” and lawsuits suggests, then OCR may well have to revise its record-keeping categories and provide schools and colleges with new reporting requirements. On June 15, for example, OCR sent out another sweeping “Dear Colleague” guidance on increasing the participation of students in fields, especially career and technical fields, whose sex is underrepresented.

Although this “guidance” noted that it used the terms sex and gender “interchangeably,” it curiously referred only to males and females and never once used the term “transgender.” Thus left unclear, unexplained, and unguided is how colleges and universities should regard athletic participation and especially scholarships — watched like a hawk by the NCAA, with rigid quotas for men and women— of transgender students. Or how a community college should count an auto mechanics student transitioning from female to male. Since her biological sex remains female even though her gender identity is male, I wondered here, “does the student add to the number of students in that class who are ‘non-traditional for their sex,’ or simply add to the number of guys?” In fact, if ‘gender identity’ determines sex as OCR unilaterally insists, why does it continue to use the term ‘sex’ at all in determining who is under-represented?

LGBT Plus 11 Other Letters

For all of its postmodern deconstruction of “sex” as most people understand it, the Obama administration’s new transgender policy ironically insists on maintaining what many maintain is the old-fashioned binary view of sex (or gender) as male or female. Thus, one is one or the other, or transitioning from one to the other. But what about the “B,” bisexuals, in LGBTQ, not to mention the more amorphous “Q,” Queer? Can they be restricted to bathrooms and locker rooms that correspond to the sex “assigned” to them at birth? Are they free to choose as the spirit moves them?

Once “sex” no longer means sex, the possibilities of what groups are protected by Title IX and Title VII become almost endless, as revealed by one of Wesleyan University’s “themed” housing options for LGBTTQQFAGPBDSM students. “Open House is a safe space for Lesbian, Gay, Bisexual, Transgender, Transsexual, Queer, Questioning, Flexual, Asexual, Genderfuck, Polyamorous, Bondage/Discipline, Dominance/Submission, Sadism/Masochism (LGBTTQQFAGPBDSSM) communities and for people of sexually or gender dissident communities.”

Don’t Forget NGTs or NGBs

Speaking of safe spaces, the new transgender policy does not fit well at all with the pervasive panic over campus sexual assault. As Yale law professor Jeannie Suk wrote in “The Transgender Bathroom Debate and the Looming Title IX Crisis,” her recent New Yorker article, “having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination.” A non-transgender girl (must we now speak of NTGs and NTBs?) who’s told she must share a bathroom with boys, Suk notes, would have a Title IX complaint. “But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and ‘emotional strain’ should be disregarded.” And, as Ed Whelan writes on National Review Online’s Bench Memos, “The Obama administration fails to offer any coherent reason why her discomfort in the latter situation should be disregarded.”

TERF Wars

If OCR had bothered to gather public comment it would have learned of a vocal minority of influential feminists who believe, as former National Organization of Women leader Kathleen Stone wrote recently in opposition to a pending transgender bill in Delaware, that “the gender identity movement that is sweeping the country is bringing with it a multitude of problems for women and girls.” One “is the loss of safe sex-segregated spaces such as public bathrooms, changing rooms and even domestic violence shelters.” Another is the “much more significant problem for women is that it becomes impossible to name biological sex as the source of women’s oppression, subjugation and inequality in a patriarchal world.”

Stone is far from alone. Michelle Goldberg had a fascinating article in the New Yorker two years ago, “What is a Woman? The Dispute Between Radical Feminism and Transgenderism,” describing the bitter feminist civil war between today’s dominant transgender orthodoxy and usually older radical feminists “TERFs” (trans-exclusionary radical feminists), 37 of whom, “including major figures from the second wave, such as Ti-Grace Atkinson, Kathie Sarachild, and Michele Wallace,” recently issued a statement titled “Forbidden Discourse: The Silencing of Feminist Criticism of ‘Gender,’” describing “their ‘alarm’ at ‘threats and attacks, some of them physical, on individuals and organizations daring to challenge the currently fashionable concept of gender.’”

Some of those attacks, for example, have been aimed at women associated with the Michigan Womyn’s Music Festival, which since 1976 through 2015 met on 650 wooded acres near Lake Michigan and described itself as “an event for ‘womyn born womyn’ only.” Lisa Vogel, the founder and director, accused the meeting’s feminist critics of “targeting Michfet with McCarthy-era blacklist tactics.” Michfest succumbed to the attacks and closed after its 2015 gathering.

Also suffering feminist and transgender attacks is Sheila Jeffreys, whose work critical of the transgender movement (such as Gender Hurts: A Feminist Analysis of the Politics of Transgenderism) was summarized in Goldberg’s New Yorker article, recently resigned after 24 years as a political science professor at the University because “safety concerns” compelled her “to take her name off her office door.”

Radical Feminists Split

TERFs, although they remain radical feminists, are increasingly unwelcome on college campuses. “The most dramatic change in the perception of transgenderism can be seen in academia,” Goldberg wrote. “Particularly at liberal-arts colleges, students are now routinely asked which gender pronoun they would prefer to be addressed by: choices might include ‘ze,’ ‘ou,’ ‘hir,’ ‘they, or even it.’” One younger TERF told Goldberg that she “would get called out” if she were to say in a typical women’s studies class today, “Female people are oppressed in the basis of reproduction.” Some students would respond, she said, “What about women who are male?”

Judith Butler, perhaps the most prominent American feminist academic, has said that she sees “no problem with women having a penis, and men having a vagina.” Perhaps taking its cue from Butler, the New York Abortion Access Fund recently stopped using the word “women” in its mission statement, because “[w]e recognize that people who identify as men can become pregnant and seek abortions.” This may well be the new orthodoxy on campus and in the progressive precincts of the Obama administration, but it is not widely shared elsewhere.

Far from being settled — in law, common understanding, or even in progressive opinion — the relationship between sex and gender and the rights that are associated with them remain hotly contested terrain, and the attempt of government bureaucrats, isolating themselves from public comment, to pronounce them settled should not be tolerated by Congress or the courts.

Disingenuousness or Duplicity

No discussion of the evolution of anti-discrimination law in the Obama era and before can be complete without trying to sort out opinions reasonably changed over time, disingenuousness, and outright duplicity. Most Minding The Campus readers are familiar with the sad story of American liberalism’s abandonment of its more than century old commitment to colorblind racial equality in favor of race-based preferential treatment as soon as the ink had dried on the embodiment of the “without regard” colorblind principle in the 1964 Civil Rights Act. But that was only the beginning.

Take Chai Feldblum (Please!), the EEOC commissioner discussed above who had previously announced her desire “to revolutionize societal norms” regarding sex and gender. In her recent letter to the New York Times, also discussed above, arguing contra Yale law professor Peter Schuck that protecting transgenders from sexual stereotypes involved no “novel interpretations of the law,” Feldblum insisted that these rulings “are common-sense applications of a federal anti-discrimination law that prohibits employers from taking sex into account.”

Feldblum would have you believe that all she and the EEOC require is that employers be sex-blind, just as they are required to be race blind. But wait a minute! Everyone knows that this EEOC, this administration, and indeed the whole progressive “community” detests race blindness with a passion, regarding it as simply the continuation of racism. Indeed, one of the reasons ENDA failed repeatedly is that the protests of its advocates that preferential treatment was not being sought fell on ears deafened to that argument by the rapid transition from equal treatment to affirmative action.

At one point, as I discussed here (“Does Sexual Equality Require Special Treatment?”) several years ago, ENDA advocates tried to combat this fear by inserting a provision that purported to prohibit “preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance,” i.e., their underrepresentation. But that provision, I noted, did not bar preferences for other reasons, such as to promote “diversity” or compensate for past discrimination. And even if ENDA had passed and this provision really did succeed in prohibiting preferential treatment, wouldn’t that mean that sexual orientation and gender identity lack the “protection” awarded to race and ethnicity? Do ENDA supporters, Feldblum, the EEOC, and OCR really believe in such a double standard of civil rights?

Feminism from the ERA to the Death of Privacy

But the mother (if you’ll pardon the gender-biased expression) of all liberal contradictions must be the glaring conflict between the feminist argument in favor the the Equal Rights Amendment and today’s predicted but still improbable struggle progressives have launched over bathroom access. Looking back in 1981 at the failure of the failure of the ERA, Betty Friedan wrote in a letter to the New York Times that it “bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms” and “encourage homosexual marriage.” The Washington Post’s Judy Mann, writing the next year, attributed Virginia’s failure to ratify the ERA to opponents who “trotted out the old canards about homosexual marriages and unisex restrooms.” Even though the ERA did not pass, those “canards” don’t look so canard-like today.

It is clear that the bathroom issue was a — perhaps the — leading nail in the coffin of the ERA. In WHY WE LOST THE ERA (1986), which remains in many ways one of the best analyses of ERA’s defeat, Jane Mansbridge argued that “[t]he unisex toilet issue fed the fervor of the anti-ERA forces by giving them something absolutely outrageous to focus on.” Mansbridge, perhaps with what now looks like irony, notes that proponents of the ERA found that argument so outrageous they often brought it up themselves, using “unisex toilets over and over to imply all other arguments against the ERA were equally exaggerated.”

ERA proponents were able to dismiss what was dubbed “the potty issue” as an outrageous canard because dominant academic, legal, and media opinion was virtually unanimous in proclaiming that the right of privacy would prevent opening the bathroom door to members of the opposite sex. Typical was an influential 1971 Yale Law Journal article by four Yale professors, led by Thomas Emerson, the iconic liberal civil libertarian, who declared that “the right of privacy would permit the separation of the sexes in public rest rooms” and other settings where disrobing occurs. Philip Kurland of the University of Chicago acknowledged in a 1970 Senate hearing that if the ERA invalidated all classifications by sex separate restrooms would be nullified, but he added that, although ERA’s language was absolute, “I would have to submit that the judiciary does not conclude that because the language of legislation is a clear mandate that they are not free to indulge in other devices for its construction.” (Quoted by Mansbridge, WHY WE LOST…, p. 283.) Indeed.

Ruth Bader Ginsburg, then a prominent Columbia law professor and ACLU lawyer, made the same point in a 1975 Washington Post OpEd. ”Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required,” the future Supreme Court justice wrote, “by regard for individual privacy.“

The regard for privacy, or rather the lack of such regard, by progressives has come a long way since the now quaint-sounding arguments for the ERA. The term “privacy” does appear a dozen times in the DOJ/DOE/OCR “Dear Colleague” transgender policy letter, but with only one exception all refer to “protecting transgender students’ privacy” because doing so “is critical to ensuring they are treated consistent with their gender identity.” For example, the letter warned, “[t]he Departments may find a Title IX violation when a school [fails] to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.” With regard to any privacy concerns others students may have, the letter specifically states that transgender students may not be denied access to facilities or programs because of “others’ discomfort with transgender students.”

Many may regard it as ironic, but given the policy preferences embodied in the “Dear Colleague” letter it is not surprising that the first claim to a privacy right violation to reach the courts after North Carolina’s H.B. 2 became law was filed by transgender plaintiffs in the Lambda lawsuit mentioned above. They claim, among other things, that “[t]here is a fundamental right of privacy in preventing the release of, and in deciding in what circumstances to release … information of a highly personal and intimate nature” and that “H.B. 2 requires the disclosure of highly personal information regarding transgender people to each person who sees them using a restroom or other facility inconsistent with their gender identity or gender expression.”

Two of the plaintiffs are transgender men — one an employee of the University of North Carolina at Chapel Hill and the other a student at the University of North Carolina at Greensboro — who claim that forcing them to use the women’s restroom would “cause substantial harm to [their] mental health and well-being” and “cause [them] to experience significant anxiety as [they know] that it would be distressing for [them] and uncomfortable for others.”

What Ruth Bader Ginsburg Said

Representing the concern of those “others,” the Gloucester County, Virginia, school board another wants the Supreme Court to defend another, more traditional view of privacy. In its request for a stay of the Fourth Circuit’s decision in Grimm while it prepares an appeal to the Supreme Court, the school board argues that “[r]eplacing the term ‘sex’ in Title IX with the term ‘gender identity’ … [n]ot only is … contrary to the historical norms of civilization, it is contrary to the intent of Title IX and well-established law recognizing the dignity and freedom of bodily privacy.” The guidance “issued by OCR, DOE, and DOJ” does not, the school board asserts, “consider the bodily privacy rights of students.”

The courts will have to decide whether to defer to OCR’s claim of legal authority for its privileging the privacy rights of transgender students and staff, who want to avoid the anxiety, stress and possible threat involved with being required to use facilities that correspond with their sex but not their gender identity, over the privacy rights of of the non-transgendered, who feel uncomfortable and threatened by the presence of those of the opposite sex in their bathrooms and locker rooms.

For the courts to uphold the legality of the OCR/DOE/DOJ guidance, they would have to conclude that the privacy arguments of Thomas Emerson, Ruth Bader Ginsburg, and other ERA advocates were wrong, or at least no longer right. They could do so, however, by acting in the manner Ruth Bader Ginsburg also endorsed in another of her pro-ERA arguments, a 1979 lecture at Washington University: “Boldly dynamic interpretation, departing radically from the original understanding,” she insisted, “is required to tie to the fourteenth amendment’s equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities.”

ERA failed to pass, but over the years courts (with Justice Ginsburg’s help)  have proved they are more than equal to the task. Moreover, the Obama administration’s zealous progressives in the EEOC and OCR are nothing if not boldly dynamic interpreters, eager to depart radically from original understanding or clear legal text whenever and wherever necessary, as EEOC Commissioner Chai Feldblum put it in defending EEOC’s creation of new transgender rights, to “revolutionize societal norms.”

Read Part One, “Transgender and the Transformation of Civil Rights”