By reinterpreting Title IX (a statute enacted to protect women from sex discrimination in education) to include gender identity discrimination, the Department of Education is forcing some schools to privilege the preferences of biological males over the privacy and safety of biological females. This is unfair to women.
On May 13, the Department’s Office for Civil Rights (OCR) issued a joint “Dear Colleague” letter with the Department of Justice. The letter asserted that Title IX’s sex discrimination ban requires schools to permit students who identify as members of the opposite sex full access to sex-specific activities and facilities, including locker rooms, restrooms, showers, housing (including overnight accommodations), and athletic teams.
The letter makes explicit what OCR has already implicitly required. For example, in December 2015, OCR settled a case in Illinois in favor of a biological male who presented himself as a girl. The settlement agreement required the school to grant the student access to the girls’ locker rooms and install privacy curtains for the student (based on his desire to use them; this was not a binding requirement) and any others who wanted more privacy.
This was done without regard for the privacy and comfort of the female students affected, and despite the school’s earlier attempt to accommodate the male student in other ways. They had already allowed him to use girls’ bathrooms and play on girls’ sports teams and offered him the use of a private locker room (which he was free to invite his friends to share so he wouldn’t have to be alone).
OCR thus used a statute that exists specifically to address discrimination faced by women and girls to privilege the interests of one male over many females. The cause of women’s equality is damaged by subsuming “gender identity” into “sex” in this way. OCR’s guidance is now subject to a nationwide injunction, and the Supreme Court recently granted certiorari to consider OCR’s reinterpretation of Title IX.
Title IX Is for Women
A few notes on terminology, and some disclaimers: I use the term “biological sex” or “sex” to refer to a person’s biological maleness or femaleness. I use “gender” to refer to refer to the broader ways that societies and cultures have understood and framed biology (social norms, traditions, expectations), which may or not be truly based on biology. Although the terms are now commonly conflated, including in law, “sex” and “gender” are conceptually distinct, as one refers to an objective biological reality, and the other is socially constructed.
It is uncontroversial to say that women have suffered various forms of discrimination throughout history and across cultures. Title IX was enacted to help correct one part of that: sex inequality in education. Although it is most famous for mandating equal treatment of men’s and women’s athletic programs, Title IX’s broad protections also include bans on sex discrimination in admissions, financial aid, employment, and housing.
The legislative history of Title IX is unambiguous. Early hearings that led to the proposal of Title IX emphasized the inequalities women faced in employment and education. The text of Title IX is unambiguous. The implementing regulations are unambiguous. Title IX is about sex, not gender. Moreover, Title IX permits housing, locker rooms, bathrooms, and showers—that is, facilities where privacy is at issue—to be separated by sex. This exception to the general prohibition against sex discrimination is based on biology, not gender roles, expression, or identity. Even courts interpreting Title IX have not found that the word “sex” also means “gender identity.”
OCR is well aware of this. And yet OCR has not promulgated regulations (which would require seeking comments from the community) supporting its own sex-as-gender-identity interpretation of Title IX. Nor has OCR explained, even via nonbinding informal guidance, the legal basis for its interpretation. Apparently, it has arrogated to itself the power to amend federal statutes by unilateral assertion.
Although some would argue that court decisions interpreting sex discrimination to include sex-stereotyping naturally lead to the conclusion that gender identity discrimination is also forbidden, sex stereotyping still assumes that sex is a stable concept. I cannot be discriminated against for being a loud, abrasive female just because some man thinks all women should be gentle and quiet; I am still a woman, and as such I am still in a protected category. The whole premise of the sex stereotype argument is that I can be a woman without being the sort of woman a man thinks all women should be.
Can Women’s Rights Exist if Men Can Appropriate Them?
Women’s rights are not the same as gender identity rights (even if you think there ought to be gender identity rights). There are different, and sometimes irreconcilable, interests involved when considering both women’s rights and the demands made by men identifying as women. For example, a man who identifies as a woman wishes to use the women’s shower and locker room at a local gym. Telling him that he can do so over the protests of the women whose privacy is violated privileges his interests over theirs.
This scenario is statistically more likely than the reverse (a gender-dysphoric female who wants to use facilities for biological males) because the majority of people who adopt a gender identity at variance with their biological sex are male. According to a report by The National Gay and Lesbian Task Force and the National Center for Transgender Equality, 60 percent of transgender-identifying survey respondents are males who believe themselves to be females.
Women’s rights movements have not focused primarily on subjective self-identification but on righting objective wrongs. Biological sex is objective. Culturally contingent gender norms may be less objective, but they are not self-defined—they are culturally determined. By contrast, gender identity is wholly self-defined and subjective.
Women have been subjected to sex discrimination for millennia. This has taken various forms, many of them violent: rape, forced marriage, sexual slavery, honor violence, foot-binding, child marriage, intimate partner violence, and acid attacks, for example. These human rights violations are specifically based on biological sex, not women’s “internal sense of gender.” They deserve to be understood and prohibited in their own right, not lumped into some vague, almost meaninglessly broad category of subjective gender self-determination.
Not only does transgender activism have aims that are at odds with women’s interests, some feminists contend that transgenderism is itself a form of sex discrimination against women. Lesbian feminist Janice Raymond argues that the phenomenon of men identifying as women is simply the latest chapter in a long history of men appropriating women’s bodies:
Behind this construction of man-made femininity is also the age-old patriarchal perception that women’s bodies should be available to men. Transsexual surgery, I admit, is a peculiar variation on this theme, but it points to the general accessibility of women, this time with men acquiring the female body not only as sexual and/or reproductive property, but through hormonal and surgical construction.
Not only does the man who identifies as a woman appropriate a woman’s body (as though the biology men have used to oppress women has suddenly become conveniently irrelevant), he ignores women’s history:
these men have not had to live in a female body with all the history that entails. It is that history that is basic to female reality, and yes, history is based to a certain extent on female biology. . . in some very real senses, female biology shapes female history—a history that men don’t have because of their sex—including the history of menstruation, the history of pregnancy or the capacity to become pregnant, the history of childbirth and abortion, the history of certain bodily cycles and life changes, and the history of female subordination in a male-dominant society.
Regardless of whether you agree with Raymond, ignoring women’s history trivializes the near-universal experience of sex and gender as objective and often oppressive realities. In any case, it should be apparent that this is a debate for feminists, women’s rights activists, and the general public to have. It is not a conversation that the unelected and unaccountable officials at OCR should be able to short-circuit.
Is There a Text in This Law?
Words mean things. They don’t mean other things. This is good for human rights: nondiscrimination statutes address some rights, and they don’t address others. Title IX is about sex. Title IX is not about voting rights, or the right to a trial by jury, or racial discrimination.
But OCR refuses to be limited by the text of the law, which undermines the point of having rights protections in law. The rule of law means that something (a law) is holding power (whether state or private) in check, keeping it from being abused. This protects everyone, but especially minorities and other vulnerable groups of people.
If words do not mean what they say, there is no limiting principle, and if there is no limiting principle, there is no law—just power. Even if you do not care about the principle, you should not assume that power will always be on your side. Women’s rights are protected when texts have meaning. If a sex equality statute can be used to mean “a man’s gender identity should always trump women’s preferences and privacy”—that is, a man’s preferences should be privileged over a woman’s—then the statute can mean anything.
This is inappropriate even if you think that an amorphous, subjective category like gender identity ought to have legal protection. Women’s rights are serious enough to merit their own category, not to be subsumed into some broader category of gender self-definition. Feminists should work to protect women from inequities arising from objective realities (whether rooted in biology or socially constructed), not get caught up in attempting to create and protect a categorical right to self-definition. They certainly should not support those who seek to impose that self-definition on others through coercion.
Feminists ought to object to the co-opting of the movement for women’s equality to give special preferences to biological males. But given that by the end of 2015, the last of the Seven Sisters decided to admit biological males to women-only schools, maybe too many feminists have already conceded the point.
Christen Price is Legal Counsel for Alliance Defending Freedom, which is currently litigating against the U.S. Departments of Education and Justice over their attempt to redefine Title IX.