The tricky question

I’ve been wondering about this. Jeannie Suk in the New Yorker on “the looming Title IX crisis”:

…on May 13th the Education Department’s Office for Civil Rights (O.C.R.) and the Justice Department’s Civil Rights Division issued a Dear Colleague letter announcing to the nation’s schools that, under Title IX—the 1972 law banning sex discrimination by schools that receive federal funding—transgender students must be allowed to use rest rooms that are “consistent with their gender identity.”…

In chastising North Carolina, the Justice Department explained that if non-transgender people may use bathrooms consistent with their gender identity, then denying transgender people access consistent with their gender identity constitutes discrimination on the basis of sex. Similarly, the Dear Colleague letter states that the federal government “treats a student’s gender identity as a student’s sex for the purposes of Title IX.”

That’s the part I’ve been wondering about, that last bit – the assertion that the feds treat a student’s gender identity as a student’s sex for the purposes of Title IX. I’ve been wondering about it because potential problems occur to me. It seems like an awfully large claim to make in a Dear Colleague letter.

These interpretations of federal anti-discrimination law are new and surprising. It is not at all obvious that the “sex” in sex-discrimination law means not sex but gender, let alone “an internal sense of gender,” as the Letter says.

It’s not at all obvious, but despite not being obvious, it is in a sense mandated – that is, it’s imposed via strong social pressure.

But it is also reasonable to interpret sex-discrimination law to prohibit discrimination against transgender people. Given that single-sex bathrooms have never been seen as constituting sex discrimination, the tricky question is whether limiting them based on biological sex, rather than gender, does indeed discriminate on the basis of sex.

And what will follow from deciding that it does.

Quite apart from a possible legal right, it is reasonable to think that the appropriate bathrooms for transgender people to use are ones fitting their gender identities. But the parents’ rhetoric of federal overreach on Title IX is not off base. It is of course unexceptional for the federal government to enforce federal law. But, unlike the Education Department’s many regulations, the Dear Colleague letter is not law, because it wasn’t enacted through legal procedures, involving public input, that federal agencies must follow when making law. The Education Department’s rule that schools must provide prompt and equitable grievance procedures to hear complaints of Title IX sex discrimination results from that required process and is legally binding. But the agency chose not to have such a process for its missive on transgender students.

It just put out an executive branch fiat, and from what I can gather via lawyer friends and lawyers who say things on the internet, that’s…let’s say a tad high-handed. High-handed apparently equals non-binding; lawsuits will litter the scene.

This is a familiar but controversial O.C.R. strategy. Its last Dear Colleague letter about Title IX, in 2011, said that sexual violence is a form of sexual harassment and is therefore sex discrimination. It detailed how colleges and universities must discipline perpetrators and prevent such incidents. It too came with a threat to cut off federal funds, and O.C.R. proceeded to investigate hundreds of schools for noncompliance.

I remember that, and I remember thinking it seemed fair enough. Fair enough isn’t the same as legally binding though.

Whether or not the federal government acted unlawfully, it has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms. Schools attempting to comply with the federal bathroom policy have at least two possible ways of doing so: allow students to use sex-segregated bathrooms and locker rooms based on their gender identity, or move away from sex segregation of such facilities. The latter, gender-inclusive arrangement, which was in place in my college dormitory more than twenty years ago, is not uncommon on campuses, and a social movement to desegregate at least some portion of bathrooms is growing. Some colleges have made every bathroom on campus open to any gender, and this solution could well become a practical choice at K-12 public schools.

But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment.

I must say, “there is also a growing sense that some females will not feel safe sharing shower rooms with males” seems laughably understated. Why would college girls feel safe sharing shower rooms with college boys? In this world of nonstop rape threats all over Twitter?

Continuing to have segregated bathrooms could also put schools in a bind on Title IX compliance. According to the federal government, a transgender girl who is told to use the boys’ locker room, or even a separate and private stall, instead of the girls’ facility, has a claim that the school is violating Title IX. A non-transgender girl who’s told she must share a locker room with boys may also have a claim that the school is violating Title IX. 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. But this week, in a letter, dozens of members of Congress asked the Attorney General and the Secretary of Education to explain why they should be disregarded. The federal government is putting schools in a position where they may be sued whichever route they choose.

It’s not clear to me why the girls’ discomfort should be disregarded, especially given the fact that girls are told to feel “discomfort” in a long list of situations that fall short of getting naked in a room with naked boys. Girls are told to feel “discomfort” about drinking too much in a bar or going to a boy’s room or wearing a sexy top – so why would girls be expected to override their “discomfort” with taking all their clothes off and showering in a room where boys have taken all their clothes off?

The debate around which bathrooms transgender people should use has given rise to deeper questioning of why we even have a norm of gender segregation for bathrooms in the first place. But a push to make those spaces open to all genders comes up uneasily against feelings of female sexual vulnerability and their effect on an equal education or workplace. To make things more complicated, the risk of sexual assault and harassment of transgender females in male bathrooms is a salient reason for providing access to bathrooms according to gender identity, while many worry about transgender males being sexually bullied in male bathrooms.

The common denominator in all of these scenarios is fear of attacks and harassment carried out by males—not fear of transgender people. The discomfort that some people, some sexual-assault survivors, in particular, feel at the idea of being in rest rooms with people with male sex organs, whatever their gender, is not easy to brush aside as bigotry. But 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.

I find that part hard to understand. It is discrimination, of course, but so is refusing to go to a boy’s room for fear of assault. Why are girls being told to be hypervigilant and self-effacing in all public spaces except rest rooms and showers? Why is fear of attacks and harassment carried out by males being made into a reason to put females at risk? It all seems quite incoherent.

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