At the end of a dizzying first month of Trump’s presidency, the Department of Justice and Department of Education issued a “Dear Colleague” letter withdrawing two statements of policy about the rights of transgender students. The ostensible justification of states’ rights makes no sense in this context and by no means outweighs the harm likely to befall those students. Like so many actions taken by this administration, the withdrawal of these documents is mean-spirited and serves no legitimate purpose. And in this particular case, Trump’s determination to dismantle the federal government comes at the expense of one of our nation’s most vulnerable populations—transgender youth.
Bathrooms and Trans Equality
As I have written in other columns, the American public seems a tad bit obsessed with bathrooms. Controversies have swirled around them in the last two years in ways that I suspect Freud would have found interesting. The first controversy that got national attention involved North Carolina’s HB2, an unconstitutional law, passed in 2016, that prevents transgender individuals from using bathrooms that align with their gender identity at any public school or university and in any governmental building. Sex, in other words, is something you are born with. In addition to the personal costs to transgender people, experts estimate that the law cost the state more than $400 million in revenue in just the first six months of the law’s passage. A significant portion of that came from the NCAA’s decision to move all college athletic championship events (e.g., March Madness) from the state in the name of equality and diversity. The NBA piled on, moving the 2017 All-Star Game from Charlotte to New Orleans. Beyond one-time events, the state has suffered the losses from corporate relocations—including PayPal, Deutsche Bank, and the Lionsgate film studio. One cost that rarely gets mentioned is the cost of defending the unconstitutional law. An article in Business Insider reports that the state diverted $500,000 from a disaster-relief fund to pay lawyers to defend the state’s bathrooms.
Undeterred, several other states are debating similar bills. In Texas, the Republican-controlled legislature is in hot pursuit of SB6, a law that would require all public schools to adopt and follow a policy under which multi-user bathrooms and changing facilities be used based on biological sex, as defined on one’s birth certificate. The only accommodation schools are allowed to provide for transgender students is the opportunity to use a single-user bathroom (perhaps the faculty bathroom) or changing facility. Public buildings are subject to the same rules. The law also prohibits local governments from enacting any law or policy that would allow a transgender person to use the “wrong” bathroom—in addition to preventing the passage of new protective ordinances, this would invalidate at least five existing ones in Texas cities. Citizens are empowered to police the bathrooms by filing complaints with the Attorney General—and the highest-ranking lawyer in the state will become a glorified bathroom monitor. Finally, penalties for certain crimes are enhanced if they occur in a bathroom or changing facility.
As happened in North Carolina, Texas is likely to lose millions in revenue if it adopts this bill. The NFL, which has been trying to overcome a negative image, has said that it would be unlikely to award future Super Bowl games to Texas if it passes this bill. Perhaps anticipating such a devastating consequence—Texans love their football—the legislators wrote in a “sporting facility” exception that would allow Texas athletic teams to set their own policies at stadiums. But the NFL is standing for a bigger point–not just the ability to be inclusive in its own stadiums, but also to stand for a broader principle of inclusion. (The league did move the 1993 Super Bowl from Arizona because the state had refused to pass a law designating the birthday of Martin Luther King Jr. as a holiday.) Future NCAA tournaments in Texas may also be in jeopardy.
The lost revenue from sporting events is real, but that is not the reason Texas should abandon SB6. It should abandon this effort because it is small-minded, unnecessary, and elevates political expedience far above humanity, equality, and common decency.
Title IX and the Assignment of Bathrooms
The battle over transgender individuals and bathrooms has been playing out, separately, on a bigger stage. It is a fight over the meaning of Title IX with respect to transgender students. Title IX of the Education Amendments of 1972 is a federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Title IX states that “No person in the United States shall, on the basis of sex, be . . . subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”
This statute has had broad-ranging effect and has been used to challenge gender inequity in a variety of contexts, including school admissions, testing, and scholarships; the treatment of pregnant and parenting students; school athletics; and sexual harassment by teachers and coaches, as well as by other students and third parties.
In many respects, Title IX is like Title VII, the federal law prohibiting discrimination in employment on the basis of sex, as well as a host of other protected characteristics like race and ethnicity. Both laws prohibit intentional discrimination on the basis of sex. Both prohibit neutral laws with a disparate impact not justified by business necessity. Both target policies and practices as well as individual acts of disparate treatment. But where they diverge is in treatment of policies and practices that expressly classify people on the basis of sex. Under Title VII, employers can legally distinguish between male and female employees when they can prove that sex is a bona fide occupational qualification (bfoq). This is a narrow exception, which is most likely to prevail in cases involving authenticity, privacy, or safety.
Title IX, by contrast, makes liberal use of sex segregation when doing so will produce greater equality than integration. Thus, despite its general mandate of non-discrimination, which usually encompasses a rule of non-segregation (separate but equal does not usually pass muster under antidiscrimination laws or constitutional guarantees of equal protection), Title IX regulations expressly permit sex segregation in several instances. Most familiarly, it permits athletic teams to be segregated by sex—schools can field different teams for boys and girls and play in leagues structured entirely around sex segregation. Only in very limited circumstances can a student insist on a cross-tryout. This is done because, the theory goes, boys would dominate co-ed teams (both by taking up more roster spots and perhaps in success on the field), leaving girls with an empty sort of equality—the right to tryout on equal terms, but not equal opportunity to have an athletic experience. In this instance, Title IX rejects formal equality (“treat likes alike”) in favor of substantive equality (seek equal outcomes). With respect to admission, Title IX also grandfathered in traditionally single-sex private colleges (e.g., schools like Wellesley and Smith), on the theory that those schools were formed to combat discrimination against women and are likely still serving that function.
Title IX regulations also include a special provision about restrooms and locker rooms. The provision, 34 C.F.R. § 106.33, permits the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students on one sex shall be comparable to such facilities for students of the other sex.” Separate but equal in this context is expressly made legal.
How do transgender students fit into these rules? Putting aside the bathroom controversy for the moment, let’s consider the general treatment of transgender individuals within federal and state anti-discrimination regimes. It has, to put it mildly, been evolving. Early cases claiming transgender discrimination were met with the judicial version of a blank stare or worse. But increasingly, courts and administrative bodies recognize that bias against transgender people is just sex discrimination, plain and simple. This is particularly so given the Supreme Court’s holding in 1989 in Price Waterhouse v. Hopkins, that sex stereotyping is a form of intentional sex discrimination that violates Title VII, the broad employment discrimination law. That’s a good match for most forms of transgender discrimination, which rely typically on a claim that a transgender person was discriminated against or harassed because of his or her failure to live up to the gender norms associated with birth sex. In 2012, the EEOC, the agency charged with implementing Title VII, concluded that discrimination against a transgender individual is sex discrimination. Some federal courts have reached that conclusion as well.
With respect to Title IX, courts are still figuring out how to handle transgender discrimination claims. But the Department of Education’s Office for Civil Rights (OCR), which is charged with implementing Title IX, offered guidance to institutions covered by Title IX about how to comply with the law.
In 2015, OCR responded to an inquiry about transgender students’ access to restroom and changing facilities. OCR’s letter, often referred to as the Ferg-Cadima letter, provided as follows: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” It cited several school investigations in which it had applied that rule to incidents involving bathroom access.
In May 2016, the Department of Education and the Department of Justice issued a joint “Dear Colleague” letter (a standard form of communication between OCR and institutions covered by Title IX). In that letter, the two federal agencies took a strong stance in support of an “inclusive, supportive, safe, and nondiscriminatory communities for all students.” Its main thrust was the same as the Ferg-Cadima letter, but with more force given the “Dear Colleague” format and the double-agency endorsement: “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” In support of this position, the agencies carefully laid out all the situations in which sex segregation is permitted under Title IX and explained how to treat transgender students in a non-discriminatory way in each context. Under the bullet point about “restrooms and locker rooms,” the letter states:
A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.
The guidance goes on to explain the proper (lawful) treatment of transgender students in single-sex classes, schools, sports, and so on. The letter is carefully researched and exhaustively footnoted with all relevant statutes, regulations, administrative policies, and case law. The bottom line is that the agency charged with implementing Title IX interpreted the statute to require schools to treat students consistently with their gender identity.
G.G. v. Gloucester: Litigation Over Title IX’s Treatment of Transgender Discrimination
As bathrooms were being monitored in North Carolina, and schools were writing to OCR to ask for advice and guidance (and Texas was just getting revved up to tackle the issue), a transgender boy named Gavin Grimm was fighting for his right to use the boys’ bathroom at school. He has undergone hormone therapy and lives life full-time as a male, but has not undergone sex reassignment surgery. Although he initially was given approval by the school administration to do so, the local school board adopted a policy banning him from those restrooms. At a meeting to consider the proposed restrictions, people in attendance said awful things. Many intentionally referred to him as a “young lady” despite his clear male identity; some referred to him as a “freak”; and one compared him to a person “who thinks he is a dog and wants to urinate on fire hydrants.” After this display, the board voted 6-1 to approve the restrictive policy, despite evidence that using single-user bathrooms had stigmatized him and led to a practice of refusing to go to the bathroom at school. He developed many urinary tract infections because his bathroom options were limited.
The validity of the school board’s action turns on whether Title IX permits schools to restrict bathroom access by biological sex. The district court dismissed G.G.’s claim on the theory that Title IX prohibits only sex discrimination—and not sexual orientation or gender identity discrimination. The court refused to defer to the agency interpretation of Title IX captured in the 2015 letter opinion, finding that it was not entitled to deference, and that G.G. was not entitled to a preliminary injunction because he did not make a showing of likely success on the merits.
That ruling, however, was reversed on appeal. The Fourth Circuit’s decision in G.G. v. Gloucester County School Board, took a broader view of Title IX’s protections. On a vote of 2-1, the court reinstated G.G.’s Title IX claim. Its ruling was straightforward and correct. It concluded that the OCR letter opinion was entitled to deference under the standard set forth by the Supreme Court in Auer v. Robbins (1997). Agency interpretations are entitled to such deference if they reflect “the agency’s fair and considered judgment on the matter in question.” They do not need to be “well-settled or long-standing to be entitled to deference.” The letter opinion was neither a post hoc rationalization by OCR or in service of a convenient litigation position. It was a reasonable interpretation of Title IX. Although the original Title IX regulations do explicitly allow sex-restricted bathrooms, they do not explicitly state that schools can also decide which sex designation a student must use. The court cited even basic dictionary definitions from the era when the original regulation was passed to show that sex has always been understood to be representative of a sum of factors rather than a simple determination of sex organs or chromosomes. Thus, the regulation that says bathrooms can be segregated by sex is ambiguous as to whether schools have discretion to restrict bathroom access solely on the basis of biological or birth sex. As the appellate court wrote, “[w]e conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.” It further concluded that OCR’s interpretation is “permitted by the varying physical, psychological, and social aspects . . . included in the term “sex.”
The school board petitioned for review by the U.S. Supreme Court, and the Court agreed to hear the case. It has been briefed and will be argued on March 28, 2017.
Enter Trump the Dismantler of the Federal Administrative State
On February 22, 2017, the Trump administration issued another “Dear Colleague” letter, this time withdrawing the 2016 Dear Colleague letter and OCR’s Ferg-Cadima letter. The new letter is short, contains no analysis or citations, and gives only vague hints as to the reason for the action. It claims that the original guidance documents “do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX” and did not “undergo any formal public process.” Moreover, the new letter notes, the “interpretation has given rise to significant litigation regarding school restrooms and locker rooms.” The original letters did contain careful analysis and citation to relevant legal authority, whereas the new letter cites nothing—it does not even give case names or citations for the cases to which it expressly refers.
The most surprising part of the new letter is this comment: “In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.” This is a preposterous line of reasoning, given that the question is about the proper interpretation of a federal statute. States have no role to play in figuring that out, nor any discretion to provide their students with fewer protections than those guaranteed by federal law. Federal anti-discrimination law has a long history of protecting equality of opportunity where states have fallen short. There is no reason now to throw transgender students—and them alone—to the states that have exhibited nothing but overt hostility to them.
This development is highly relevant to G.G.’s case because the Fourth Circuit’s ruling was explicitly based on deference to the Department of Education’s interpretation of Title IX, embodied in the 2015 and 2016 letters. The Supreme Court might still dismiss certiorari as improvidently granted, although a second question about whether Title IX protects against transgender discrimination is still alive. The withdrawal of the letters does not change the underlying meaning of Title IX—there is a very strong argument that the statute must be interpreted just as the agency did. But without the agency deference, it’s a more uphill battle.
The bathroom wars are far from over—they seem to be gaining, rather than losing, steam. But they remain somewhat inexplicable. A pervasive problem with all the restrictive bathroom policies at the state and federal level is that those who have supported and enacted them have done so without a shred of evidence that they serve any purpose other than to harm an already vulnerable group. The two arguments in favor of forcing transgender students to use the bathroom aligned with their birth sex are that transgender women are likely to assault other women in the bathroom or that men will pretend to be transgender in order to gain access to the girls’ restrooms, where they will assault them. Neither of these claims are supported by any evidence. Yet, this false narrative about safety has dominated the conversation. The Trump Administration’s thoughtless withdrawal of these letters (apparently over the objection of Secretary DeVos) simply furthers it.