The Gloucester County School Board in Virginia really wants to make sure that transgender student Gavin Grimm (“G.G.” in court filings) cannot use the men’s bathroom and locker rooms during his senior year. Having lost its case at the Fourth Circuit earlier this year, the district petitioned the Supreme Court this week to hear its appeal.
Gloucester argues that it should not have to accommodate transgender students, but much of the petition focuses on an important question about when courts should defer to an agency’s interpretation of its own regulation. The Court’s three most conservative members recently expressed interest in increasing the power of the judiciary at the expense of federal agencies, and it is possible that the Court could take up this issue if they can secure a fourth vote.
Even if the Court does seize this opportunity to reconsider deference to agencies, however, this case is still fundamentally about whether a federal law prohibiting “sex” discrimination encompasses discrimination based on gender identity. The Department of Education concluded that it does, and that a regulation permitting gender-segregated bathrooms does not permit schools to exclude trans people from the bathroom that aligns with their gender identity. Gloucester does not simply believe that courts should not defer to the Department’s guidance. It believes that the Department’s guidance was wrong.
Gloucester argues that if Title IX protects both “gender identity” and “biological sex,” it somehow obliterates the law’s allowances for sex-segregated facilities:
Reading “sex” to include “gender identity” would make a hash of Title IX’s scheme allowing facilities and programs to be separated by “sex.”If “sex” signifies, not biology, but rather one’s “internal” sense of maleness or femaleness, the whole concept of permissible sex-separation collapses. What sense could there be in allowing “separate living facilities for the different sexes” if a biological male could legally qualify as a woman based merely on his subjective perception of being one? The answer is none.
This is tautological word soup; the school is arguing that if it can’t discriminate against transgender people, then it won’t be able to discriminate against transgender people. More importantly, the phrase “subjective perception” reveals that the school district does not understand what concepts like “gender identity” and “transgender” mean. It appears to believe that gender identity is a whimsical choice — as if a man can wake up one morning, decide that they feel like a woman, and that makes them “transgender.” In reality, a person’s gender identity is consistent; trans people stay that way and cis people do not suddenly decide to be trans. The district also ignores the fact that biological factors shape out gender identity, regardless of whether we are trans or cisgender.
It likewise seems lost on Gloucester that all people have a gender identity, whether they are transgender or not. It’s the only explanation for “preposterous” conclusions like this one:
As applied to Title IX, that preposterous construction would legalize just the kind of biologically based discrimination against men and women that Title IX was enacted to prevent. For instance, schools could exclude biological women from taking science classes or joining the chess team, so long as they allowed biological men who identify as females to do so. Only transgendered [sic] people would be protected under this Title IX regime; men and women who identify with their biological sex would receive no protection at all.
If that sounds like nonsense, that’s because it is. Because sex and gender align for most people, respecting gender identity instead of biological sex only changes how transgender people are treated. The men’s room would be open to all men, whether they are cisgender or transgender, and likewise for the women’s room. Gloucester’s argument is that trans men like Grimm are not men requires a rejection of all of the available information about gender identity that research has produced in the past half-century.
The school district actually argues — quoting dissenting Fourth Circuit Judge Paul Niemeyer — that when Title IX was passed in 1972, “virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions.” But the Department’s 2014 guidance reflects two important differences across that 42-year gulf: The knowledge that transgender people are functionally the sex they identify with — all day, every day — and the reality that there are now openly-identifying transgender students attending schools. If transgender people aren’t recognized under “sex,” they aren’t recognized at all.
The school district’s argument is literally this: If we can’t discriminate against trans students, then we won’t be able to discriminate against trans students. Justice Stephen Breyer may have granted Gloucester the “courtesy” of hearing that argument before requiring it to accommodate Grimm, but hopefully he and his colleagues will not be convinced by it.