Transgender rights advocates deploy their secret weapon: Justice Scalia

If words matter, Team Anti-Trans isn’t going to like what Scalia had to say.

CREDIT: AP Photo/Manuel Balce Ceneta
CREDIT: AP Photo/Manuel Balce Ceneta

It’s like they’re talking about two different cases.

If you read the school district’s brief in G.G. v. Gloucester County School Board—a Supreme Court case asking whether trans students can be excluded from the bathroom that aligns with their gender identity—you would think it were an extraordinarily complicated issue. Their brief relies on a federal law, a regulation, nine different dictionaries, a pile of law review articles, and about a dozen references to Sen. Birch Bayh (D-IN), who left office in 1981.

Meanwhile, lawyers for Gavin Grimm, the trans student at the center of G.G., think their case is very simple. Their argument largely comes down to just five words: “on the basis of sex.” And they claim to have a powerful ally on their side the late conservative icon Justice Antonin Scalia.

What is sex?

G.G. arises under a law commonly known as “Title IX,” which provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” by a school that receives federal funds.


The school district’s brief goes to great lengths to argue that the word “sex,” as it appears in Title IX, refers exclusively to “the physiological differences between men and women” and not to gender identity. That’s why it breaks out a pile of dictionaries.

Senator Bayh, who was Title IX’s principal sponsor, shows up in their brief because he said, decades ago, that the law should allow “personal privacy” to “be preserved,” among other things.

To all of this, Grimm’s attorneys effectively say “so what?” The genius of their argument is that, even if you accept the narrowest possible definition of “sex” — that is, even if you believe that the word “sex” refers exclusively to whether a person is born with a penis or a vagina — Grimm still wins his case under the framework offered by his lawyers.

Recall that Title IX uses very broad language. It forbids any discrimination “on the basis of sex.” Every other student at Grimm’s high school is allowed to use a bathroom that corresponds with their gender identity. Grimm cannot, and the reason he cannot is because he was born with female sex characteristics. That’s discrimination based on sex.

As Grimm’s attorneys summarize their argument:

A person’s transgender status is an inherently sex-based characteristic. Gavin is being treated differently because he is a boy who was identified as female at birth. The incongruence between his gender identity and his sex identified at birth is what makes him transgender. Treating a person differently because of the relationship between those two sex-based characteristics is literally discrimination “on the basis of sex.”

Enter Justice Scalia

To rebut this textualist argument, the school board engages in the legal equivalent of throwing its hands in the air and screaming “c’mon!” Sure, the text of the law may say what it says, but its drafters didn’t really intend to protect trans students when they wrote and passed this law.


As the board’s attorneys’ write, “in the debates [surrounding the law’s passage,] Senator Bayh used the term ‘sex discrimination’ and ‘discrimination against women’ as virtually interchangeable.” It was anti-woman discrimination, not anti-trans discrimination that motivated Congress to pass this law, and that, according to the school board, should be dispositive.

The Supreme Court, however, has not read anti-discrimination law so narrowly. As Justice Scalia explained for a unanimous Court in Oncale v. Sundowner Offshore Services, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Courts must obey the words that Congress enacted into law, not whatever expectations Senator Bayh might have had in 1972.

Indeed, enshrining this broad notion — that it is inappropriate to go digging through a law’s legislative history to find lawmaker quotes that support your preferred reading of the law — was one of the major projects of Scalia’s career. “We’re not governed by the drafter’s intent,” Scalia insisted in a 2012 interview, “we’re governed by laws.”

Grimm’s attorneys hope that Scalia’s approach will resonate beyond the grave. They quote liberally from Scalia’s Oncale opinion, which held that “sex discrimination consisting of same-sex sexual harassment is actionable under” anti-discrimination law even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it” banned sex discrimination in employment.

So, if the broad language of a law banning sex discrimination in the workplace can capture men sexually harassing men, the broad language of Title IX is also capacious enough to encompass discrimination against transgender students.

Without the text of the law on their side, the school district can fall back on a regulation promulgated by the Education Department, which provides that “separate toilet, locker room, and shower facilities on the basis of sex” are allowed, so long as facilities “provided for students of one sex” are “comparable to such facilities provided for students of the other sex.”


But even if this regulation does offer support for the district’s arguments, regulations are supposed to be interpretations of a federal law (in this case, of Title IX), not a new source of law in and of themselves. And Title IX only allows agencies to create regulations that are “consistent with achievement of the objectives of the statute.” This statute’s objective is to eliminate discrimination “on the basis of sex,” which, for the reasons explained above, is a broad enough objective to encompass anti-trans discrimination.

The Supreme Court will hear arguments in this case on March 28.