The Transgender Question On The Table

Attorney General Loretta Lynch has teed up a question that needs to be answered: is discrimination against transgender folks sex discrimination?  The Department of Justice has commenced suit against the State of North Carolina based upon its knee-jerk law in response to Charlotte’s transgender bathroom law.  Despite various issues with the NC law, the suit goes to some core questions:

count1

Title VII applies to workplace discrimination.  It prohibits discrimination on the basis of sex. It makes no mention of discrimination on the basis of gender identity.

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Title IX prohibits the denial of educational benefits on the basis of sex. It, too, makes no mention of discrimination on the basis of gender identity. The Violence Against Women Act, VAWA, prohibits discrimination based on gender identity, but applies only to programs funded by the act.

The debate is problematic on many levels.* Many people support the concept, supporting the elimination of discrimination against transgender folks. What is often missing from this belief is that it means that the rights afforded transgenders may come at the rights of others. Some don’t care, which is fine, but others do care. And those who don’t care refuse to acknowledge that their position forfeits other people’s rights based on their values.

But this suit, finally, calls upon the court to determine whether sex discrimination, as Congress provided in Titles VII and IX, includes gender identity discrimination.  Clearly, this wasn’t the case at the time the law was enacted.

Some say that a ban on sex discrimination “require[s] unisex restrooms in public places.” “Emphatically not so,” according to a prominent feminist:

Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.

The author? Now-Justice Ruth Bader Ginsburg, writing in The Post on April 7, 1975, and explaining why the Equal Rights Amendment shouldn’t be opposed based on “the ‘potty issue.'” . . . Then-Professor Ginsburg’s argument would apply as much to Title IX or to the Civil Rights Act as it did to the Equal Rights Amendment.

Nor does the text provide support for the proposition that discrimination on the basis of sexual identity is prohibited.  Title VII provides:

UNLAWFUL EMPLOYMENT PRACTICES

SEC. 2000e-2. [Section 703]

(a) Employer practices

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Title IX provides, in relevant part:

Section 1681. Sex

(a) Prohibition against discrimination; exceptions. 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 under any education program or activity receiving Federal financial assistance…

The argument can be, and is being, made that discrimination on the basis of sex means sexual identity, and thus includes transgender people within its scope.  But the question is not should it, because you feel it should, but does it. The language is clearly against the government. The words “sexual identity” appear nowhere in the statute, were never anticipated to be covered by the prohibition, and have never been held to be included.

Moreover, as now-Justice Ginsburg made clear back in 1975, there was an affirmative disavowal that these laws were meant to have this effect.  Then again, the Equal Employment Opportunity Commission, whose duty it is to implement Title VII, hasn’t been shy about extending its reach from the plain language of the law to areas far afield from its core.  And under Chevron deference, courts are constrained to accept its “expertise” as to what the law prohibits.

Still, there is nothing to support the contention that either Titles VII or IX, as of now, cover discrimination based on sexual identity.

“Ultimately, I think it’s time for the U.S. Congress to bring clarity to our national anti-discrimination provisions,” Mr. McCrory, a Republican who is running for re-election this year, told reporters here. “Right now, the Obama administration is bypassing Congress by attempting to rewrite the law.”

Lynch’s arguments are revealing.

“They created state-sponsored discrimination against transgender individuals who simply seek to engage in the most private of functions in a place of safety and security,” she said at a news conference in Washington. “None of us can stand by when a state enters the business of legislating identity and insists that a person pretend to be something or someone that they are not.”

Emotional hyperbole will certainly resonate with supporters, even if “none of us” may overstate the support. But this sounds far more like a plea for change than reliance on the law.

Straying from her usual understated, lawyerly tone, Ms. Lynch, a North Carolina native, grew impassioned as she likened the fight to earlier battles over Jim Crow laws and laws against same-sex marriage.

“This is not the first time that we have seen discriminatory responses to historic moments of progress,” she said. Addressing transgender people, she added: “We see you. We stand with you, and we will do everything we can to protect you going forward.”

Whether or not Lynch is on the right side of history, the question remains whether the executive branch of government, through the unilateral fiat of administrators, is sufficient to overcome the fact that neither Congress nor the Judiciary, the other two co-equal branches of government, have reached the same conclusion.

There is much to hash out in the determination of how rights are divvied up, whose prevail and who suffers. That’s a political battle, and one that is fought with tears rather than thoughts. But political battles are meant to be fought in Congress.  Instead, the executive branch has decided to engage in social engineering without the benefit of law, because they believe it’s the right thing to do.

And because they’ve made this choice, the issue will be put to the court to decide whether laws that were never meant to cover transgender rights can be reinterpreted to do so, despite Congress having said nothing of the sort.  If America wants to include the rights of transgender people in Titles VII and IX, it should happen by act of Congress, not by executive fiat or even judicial decree.

That said, I suspect AG Lynch will be sadly surprised when she’s told that her deepest feelings don’t constitute a basis for a radical change in law. Of course, by the time this is decided, appealed, and ultimately decided, she will be sitting in a corner office in a huge law firm making bundles of money, so she won’t be too sad. And she will be able to afford to pee any place she wants.

*Beyond the overarching question are myriad choices, each of which requires individual consideration. Simply saying that discrimination against transgenders is wrong fails to address the many permutations that arise from varying scenarios.

Assuming transgender discrimination to be wrong, the next level of issues to be decided is what will be the new rules of the game, how they will be enforced, and how to address the unintended consequences of the remedies. Is this to be decided by executive branch administrators, legislators or judges? And even when decided, will the next set of administrators get to revisit all decisions and recreate social rules in their image?

62 thoughts on “The Transgender Question On The Table

  1. RollieB

    “What is often missing from this belief is that it means that the rights afforded transgenders may come at the rights of others.” OK, which rights are nullified/surrendered when/if the government’s position is upheld?

  2. Marc R

    Title VII “sex” is definitely gender based. When you fill out an eeoc intake questionnaire or a Form 5 you have to show how your gender was the basis of discrimination. Even sexual harassment suits have to be gender based (applies to males and females equally after Scalia’a Sunflower opinion) and just recently same sex harassment is actionable if the motivation was “gender-based.”

    I think the colleges are trying to merge Title IX another animal entirely. Remember Title VII affords no sexual orientation protection which is separate from and clearly not contemplated by the Civil Rights Act.

    I’m not sure where transgenders should take a dump but Title IX and the FCRA VII aren’t close to applicable.

    1. SHG Post author

      When Title VII was enacted in 1964, gender (actually, sex as used in Title VII to mean what has since become known as “gender”) meant something very different than it does this week. We keep coming back to the need for definitions, because Orwell was right. As we continue to disconnect words from definitions, then vaguely redefine them to mean whatever Humpty Dumpty wants them to mean, they ultimately mean anything and nothing.

      1. marc r

        Spielberg should video record all you old timers giving war stories so the trial lawyer doesn’t become a myth told around the campfire to e-discoverers, AI Shepard bots, and the 2021 Federal Sentencing Keno Board (“L21 [offense level] and…*ping pong balls rolling*…C17 [criminal history points over 16, ty for playing career criminal*].”

        *residual clause may add criminal history points in your jurisdiction; offer not valid in 5th, 11th or other circuits as determined by bad law.

      2. ShelbyC

        RBG is credited with borrowing the term “gender” from grammar so that, in sex discrimination cases, male judges wouldn’t see the word “sex” over and over again on the page and get distracted. Kinda sexist…

  3. Patrick Maupin

    who simply seek to engage in the most private of functions in a place of safety and security

    We all want that. I guess we should just shut down the men’s room and all congregate in the women’s.

  4. Brynne

    From this article:
    “…[T]here is nothing to support the contention that either Titles VII or IX, as of now, cover discrimination based on sexual identity.”

    Not so. Guidance on enforcement of Title IX extending to transgender students was explicitly stated in a document released 2 years ago:

    http://www.ed.gov/news/press-releases/guidance-issued-responsibilities-schools-address-sexual-violence-other-forms-sex

    Whether this lends itself to implications for other laws that address sex discrimination – but are not explicit about gender identity – is still a legal issue to be sorted out.

    1. SHG Post author

      I don’t think you understand what is meant by support. It means rulings by judges or laws enacted by Congress, not the personal opinions of Catherine Lhamon who, it may come as a surprise to some, and certainly to her, is not the Queen of the United States.

  5. pavlaugh

    So VAWA specifically refers to both “sex” and “gender identity,” but Title VII and IX do not. That’s apparent just from the pleadings you pictured. Seems like Congress knows “sex” is separate and distinct from “gender identity” and has not included gender identity in Title VII and IX.
    Time to BUST OUT THE LATIN: expressio unius est exclusio alterius.

    1. Brennan

      An assertion that Congress knows anything is automatically suspect. Also, I think that expressio unius is not usually cited to explain how courts use one statute to interpret another.

      I have a different question for the class, however. It is now commonly accepted that (most) minority sexual orientations are a protected class and one such sexual orientation is bisexual. The next step is obvious. So I wonder what rights AG Lynch thinks that Titles VII and IX give to a person claiming to be bi-gendered?

      1. SHG Post author

        I am sorry to inform you that you don’t get to ask questions of the class. You can wonder all you like, but not here.

  6. wilbur

    Luckily for us all, we live in a nation with a Living Title VII and Title IX, so the meaning of these statutes may evolve as a) times change, or b) so they mean whatever the interpreter thinks is the correct outcome.

    1. Patrick Maupin

      The correct outcome is that everybody gives me their winning powerball tickets.

  7. B. McLeod

    I think there is a more fundamental underlying question. Before there can be a need to tee-up the question whether “discrimination” against transgenders is “sex discrimination,” the PC do-gooders need to rationally explain how treating a person the same as we treat everyone else of their biological gender “discriminates” at all. Beneath their premise that it does is the assumption that subjective “gender identity,” rather than a person’s objective, biological gender, controls. Implicitly, they are really demanding that the courts find that to be “true.”

    Based on what? What rational foundation of any kind exists for such a determination?

    Have the proponents of this wonderful premise even thought it through? For decades, the law has recognized that there are some jobs for which gender can be a legitimate occupational qualification. Certainly the federal government itself has a long history of gender-based discrimination in military conscription. What happens there when we switch to the concept of legal “gender” as subjective and fluid? Indeed, the concept as urged by EEOC would allow ostensible “transgenders” to subjectively flip their “gender identification” back and forth at will, perhaps holding a job Monday, Wednesday and Friday as a “female” guard at a women’s prison, but Tuesday and Thursday as a “male” guard at a men’s prison. It should at least help the homeless, who can demand a berth at the Women’s Crisis Center when the Salvation Army’s shelter is full up. Also, college athletes who can’t make the men’s team at their university will no longer be out of options. If the DOJ really thinks people aren’t going to game the Hell out of subjectively-flippable “gender,” they are living in a fool’s paradise. It is a stupid and defective notion, and society’s gadflies will take great pleasure in exploiting the defective stupidity to the hilt.

    1. SHG Post author

      Damn, an excellent and very provocative point. You’re right, the concept of gender fluidity can’t be avoided, except by us slaves to objective standards, and the mischief potential is huge.

  8. Kate

    You all have not read the brief – the AG is arguing that sex has not been defined by congress, and that sex is a multi-faceted term that includes anatomy, chromosones, hormones, and gender identity, etc. Therefore, gender identity discrimination IS very much sex discrimination, any way you slice it.

    When a child is born and a doctor looks at its genitals and decides its gender, they are relying on an indicator that is not always an accurate or complete reflection of the fact. Therefore, the doctor has misidentified the gender of a transgender person, and put the wrong information on their birth certificate. Thus, when a state makes a law that says you have to go by the gender on your birth certificate, its not surprising that some people might take issue what’s on that piece of paper…

    1. SHG Post author

      …and that sex is a multi-faceted term that includes anatomy, chromosones, hormones, and gender identity, etc. Therefore, gender identity discrimination IS very much sex discrimination, any way you slice it.

      Welcome to planet earth. We use this thing here called logic. It will be very hard for you to understand at first, as it’s completely foreign to your nature, but eventually, you may come to like it. Some of us do. Others, not so much. Enjoy.

      1. Keith

        “We use this thing here called logic.”

        You haven’t defined “logic” on your page. How will Kate process this?

        1. SHG Post author

          Oh? She lol’d me and you expect me to help her by defining logic? Not after she hurt my feelz.

          1. Keith

            SHE?!? I’m gonna go out on a limb and assume you didn’t even ask for hir desired pronouns before that assault?

        2. Kate

          Laws hing on meaning and words, so it might be helpful to have a definition of sex. By your defition, intersexed people and those with genital abnormalities don’t exist.

          1. SHG Post author

            One of the gravest problems of passionate believers is that they believe so strongly in their irrational assumptions that they are blinded to logic. Of course genital abnormalities exist, but not only is it an infinitesimal problem, but it’s a red herring; that’s not what the suit is about. If you had any cred, you lost it by being disinegnuous. On the bright side, you lost nothing because you had no cred.

            As to the definition of sex, it was used by Congress in the then-standard binary meaning. Note they didn’t say gender, but sex. Now perhaps, given changes in social norms, Congress would like to expand upon the word, which would be an appropriate thing for Congress to do. It can then address the various issues that arise from its expansion. Which is what we have a legislative body.

            But it’s not up to the AG, or her lower administrators, to impute a meaning to the word that it does not, and was never intended to, have. No matter how obvious it is to you that sex means whatever you passionately feel it should mean, that’s not how definitions work, how law works, or how our government works. Legal definitions don’t change every time a social justice warrior cries sad tears.

            1. Kate

              I agree that the law shouldn’t be willy-nilly changed, but sometimes science intervenes. By your logic, slavery should still be in practice, because the framers thought black folks were only 3/5ths people.

            2. B. McLeod

              You can always tell the people who have never read the constitution. There in fact never was any provision stating that African Americans were 3/5 of a person. Ever. It is one of those do-gooder falsehoods that has grown by its mindless repetition on the Internet, countless hundreds of times.

            3. Kate

              The Three-Fifths Compromise, is found in Article 1, Section 2, Paragraph 3 of the United States Constitution, which reads:

              Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

            4. Kate

              Well, shoot, if we are completely tied to the literal definition of each and every word, then that document isn’t worth much.

            5. SHG Post author

              Heh. Said the person who dismissed the 13th Amendment as not mentioning 3/5s. Can’t have it both ways, Kate.

            6. B. McLeod

              The constitutional provision in question was status-based, not race-based. There were of course many free blacks in the colonies, who, being free, counted as a whole person. There were also significant numbers of whites under “indefinite indentures,” who, being not free within the definition of the provision (because their indentures were not for a term of years) were counted as 3/5.

        1. marc r

          Address “B McLeod’s” arguments above. As someone experienced with civil rights litigation experience, I think he hit the nail on the head with why Title VII allowing non-fixed or fluid genders would destroy the gender based sanctity of civil rights claims and I don’t know if gender (feminists) will accept less than strict scrutiny and be tied with fluid genders that a fixed gender person cannot avoid.

          1. Kate

            Sure.

            No one is arguing that gender is non-fixed or fluid. The argument is that the gender of transgender people is that of their gender identity and not of a cursory view of their genitals at birth. Therefore, to require a transgender person to use a restroom that is inconsistent with their gender identity is to bar them from the same restroom that you would let a non-transgender person use.

            In practice, its like this: a man who identifies internally as a man is allowed to use the men’s room, while a man who identifies as a woman is barred from the woman’s room; and, since gender identity is a component of sex – if not the most important – you have engaged in sex discrimination by not letting someone who is a woman by sex use the woman’s rest rooms.

            1. Keith

              If I’m going to be sucked into this vortex of illogical inconsistency, I’m taking you all down with me:

              A man who identifies as a man is not permitted in the womyn’s bathroom. He’s either prevented because he has balls or he thinks he does, but apparently that doesn’t matter. So, any system which doesn’t permit everyone to use any bathroom they desire is one of exclusion based on sex (or is it gender? whatever….)

              You can’t argue that they should be permitted to use the bathroom of their choice, because that, in and of itself, is exclusion by the very criteria to which you are objecting.

            2. SHG Post author

              Is it a vortex of illogical inconsistency, or logical inconsistency, or illogical consistency? This is giving me a headache.

            3. marc r

              Is there a limit to gender identification? If it’s not fixed to any external factor then how’s it different from political parties, hair color, religion, or regional diversity (midwest, foreigner, northeast, etc.)?

              If it’s fixed, then is it one gender switch? What about one gender switch as a minor and one as an adult?

              Do you see that civil rights legislation is about characteristics that one cannot change or that one is born into? If gender becomes a choice then it can’t warrant strict scrutiny. Do you think gender is not as important as race or national origin?

            4. B. McLeod

              I believe that those who review the EEOC consent decrees will find no limit on the number of times employers and co-workers may be required to acknowledge a change in gender identity. It could well be daily.

            5. Kate

              There are standards of care for transgender people…its not some ever evolving thing.

            6. B. McLeod

              Actually it is. Contrast the diagnosis that USED TO exist under the DSM with the current version’s “gender dysphoria.”

            7. Patrick Maupin

              I’m with Kate, but she hasn’t thought this through far enough. The dichotomy between bathroom and not-bathroom is repressive and discriminates against naturists and drunkards. Let’s fix this so I don’t have to set the alarm for 3:30 AM just so I can sneak around and mark the boundaries of my lawn unseen.

              (Being able to do this in the open in the daytime would also help my adverse possession claim on the corner of my neighbor’s yard that contains my favorite bush.)

            8. Kate

              I rest my case on the grounds that I would rather laugh at where this conversation is going than continue it a minute longer. Thanks for the entertainment all.

            9. SHG Post author

              Thanks for playing, and actually for being such a good sport about it. We may disagree, but at least you have a sense of humor, which is too often missing from disputes.

            10. Patrick Maupin

              Keith:

              A man who identifies as a man is not permitted in the womyn’s bathroom. He’s either prevented because he has balls or he thinks he does…

              You misspelled “perverted.”

  9. RollieB

    Interesting dialog. I agree with Kate. Most of the legal eagle are engaged in in mental legal masterbation. Real world….? Probably.

  10. rjh

    I expect the legal outcome to be as you predict, and unfortunately the present political process will lead to some bad legislative decisions for a while. The first is because in the 1960’s, when the law was written, very little was understood about the genetic, hormonal, psychological, or social processes around gender identity. Most understanding was still the 19th century traditional understanding, with the latest science being the 1905 determination that human sex was determined by XX/XY genetics. So it’s easy to see that a law written then would not have considered these issues and it’s most likely that interpretations will limit its application to things that were understood at the time.

    Now there is immensely better understanding, but it’s clear from what is know that there is also a lot still to be learned. Many important questions regarding gender identity remain scientifically unanswered, and political opinions are interfereing with scientific inquiry. This includes both the SJW arguments about gender fluidity and the 19th century traditionalist views of gender roles. They are both being pushed into law without regard for other information.

    At present it is estimated that 1-2% of births do not correspond to 19th century definitions, with 0.1-0.2% being so divergent that surgery is performed. There is no universal genetic or hormonal testing at birth, and many surgeries are kept very private for obvious reasons, so there remain large uncertainties. Some may think, who cares about the treatment of 1%. Screw them. It’s an insignificant minority. I disagree, but that’s a common attitude.

    It’s harder to take that attitude when dealing with real people. What do you think the law should do with an XXY male? Clearly he doesn’t fit the XX/XY rules of 19th century tradition. Depending on the extent of other hormonal factors, he may or may not pass as within the traditional visible norms for a male. He may or may not have been assigned “male” at birth. But most XXY males do choose the traditional male role as most comfortable. (There are an estimated 500,000 plus XXY males in the US. You probably won’t identify them unless you know what to look for.)

    What should the law do with a CAIS XY-female? CAIS is fortunately very rare. There are only an estimated 2500 in the US. Due to an early developmental defect they are completely insensitive to androgens, and develop externally as a fully traditional appearance female. The fact that they are genetically XY (traditional male) is not discovered until they seek medical treatment for infertility or failure to menstruate. That alone is generally a devastating discovery. Should the law make things worse?

    These are some of the understood issues. Many other aspects of transgender, intersex, and non-traditional gender beavior are nowhere near as well understood. The proper legal answer would be to act with care, empathy, and consideration to minimize harm and avoid humiliation of anyone. That’s not the present path.

    1. SHG Post author

      I too care about the 1%. I also care about the other 99%. I care about the easy questions and the hard questions. At the moment, we’re up to our eyeballs in simplistic bullshit. There is a strong likelihood that someone’s rights are going to come at the expense of someone else’s. Some will be willing to give up their rights. Others will not. When the issue is approached in the proper course, all the difficult issues can be address. As you say, that’s not the present path.

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